May I Participate in the Census?

This year, Rosh Chodesh Sivan falls on Sunday, and therefore the haftarah for Shabbos parshas Bamidbar is mochor chodesh. However, the usual haftarah for parshas Bamidbar begins with the pasuk that serves as the basis for the prohibition to count Jews. Since the United States is attempting to conduct a census this year, as required in the Constitution, I present the following halacha discussion:

Question #1: Counting Sheep

Why would someone count sheep when he is trying to stay awake?

Question #2: Counting from a List

Is it permitted to count Jews by counting their names on a list?

Question #3: Ki Sissa or Hoshea?

The Gemara bases the prohibition to count the Jewish people from the opening words of the “official” haftarah for parshas Bamidbar: And the number of the children of Israel shall be like the sand of the sea that cannot be measured and cannot be counted (Hoshea 2:1). Why does the Gemara attribute the prohibition to a less obvious source in Hoshea, when there appears to be an obvious Torah source for this prohibition, in the beginning of Parshas Ki Sissa?

Answer: Analyzing the Sources in Chazal:

The Mishnah (Yoma 22a) describes that in order to determine which kohen would be awarded the mitzvah of removing ashes from the mizbei’ach, the kohanim extended their fingers, which were then counted. The person in charge picked a number much greater than the assembled kohanim, and then counted fingers until they reached the number. The kohen on whom the number landed performed the mitzvah (Rashi ad loc.).

The Gemara asks why they didn’t simply count the kohanim themselves, to which it answers that it is prohibited to count Jews (Yoma 22b). Counting fingers is permitted; counting people is not (Rambam, Hilchos Temidim 4:4). We are aware of one common application of this mitzvah: when counting people for a minyan, one counts words of a ten-word pasuk, rather than counting the people directly (Sefer Ha’itim #174; Kitzur Shulchan Aruch 15:3).

Here is another application: to determine how many places one needs to set at a table, one should not count heads, but one may count sets of legs (Shu’t Torah Lishmah #386).

The Gemara quotes three Biblical sources for this prohibition:

1. When the nation of Ammon threatened the Jewish community of Yaveish-Gilad, Shaul gathered a large Jewish army and counted them in an indirect manner (Shmuel I 11:8). According to one opinion in the Gemara, Shaul counted the members of his army by having each throw a piece of broken pottery into a pile. Thus, we see that even to fulfill a mitzvah, one may count Jews only in an indirect manner.

2. Before attacking Ameleik, Shaul gathered the Jewish people and had each person take a sheep from Shaul’s herds. By counting the sheep, he knew how many soldiers he had (Shmuel I 15:4, see Rashi). Again, we see that he used an indirect method to count them.

3. And the number of the children of Israel shall be like the sand of the sea that cannot be measured and cannot be counted (Hoshea 2:1). Taking the verse not only as a blessing, but as a commandment, the Gemara derives a prohibition against counting the Jewish people.

Isn’t the Torah a Clearer Source?

The obvious question is — why does the Gemara not quote the following pasuk in the Torah as a source for the prohibition?

When you will take the headcount of the children of Israel according to their numbers, each man should give atonement for his life to Hashem when counting them so that there is no plague as a result of the counting. This is what whoever is counted should give: a half shekel (Shemos 30:12 -13).

This pasuk certainly implies that the only way one may count Jews is indirectly, by having each one donate half a shekel and then counting the coins. This seems to be the source of how Shaul knew that he should count the Jews the way he did. It is indeed odd that the Gemara quotes the incidents of Shaul as the source for the prohibition, rather than Shaul’s source — the Torah itself!

Before answering this question, I want to analyze a different point that we see in the pasuk. The Torah says: each man should give atonement for his life to Hashem when counting them, so that there is no plague as a result of the counting. In the discussion of no other mitzvah does the Torah say, “fulfill this commandment so that no plague results.” Why suddenly does the Torah say this in regard to this mitzvah?

Rabbeinu Bachya (ad locum) explains that when we count individuals, it causes the heavenly tribunal to note all his deeds, and this may result in his being punished for his sins, which otherwise would not be punished now.

Others explain the concern in terms of ayin hora. The Abarbanel, for example, explains that when counting people by head, the counting causes ayin hora and therefore illness enters their bodies hrough their eyes and mouths, whereas counting fingers does not cause the ayin hora to enter them. I leave to the reader to decide whether he means in a physical way or a metaphysical one.

Why the Prophets?

So, indeed, if we see from the Torah, itself, that counting Jews is prohibited and potentially very harmful, why did the Gemara base itself on verses of the Prophets?

The commentaries present several approaches to answer this question. Here is a sample of some answers:

(1) The Gemara is proving that one may not count Jews even for the purpose of performing a mitzvah, something that the Torah did not expressly say (Sfas Emes to Yoma ad loc.). However, from the incidents of Shaul and the verse in Hoshea, it is clear that one may not count Jews directly, even for the sake of a mitzvah.

(2) The Gemara needs to prove that we may not count even a small group of Jews, whereas the pasuk in Ki Sissa may be prohibiting only counting the entire people (Mizrachi; Sfas Emes).

(3) The verse in Ki Sissa could mean that one may count the Jews in a normal census, but that afterward, they all must provide half a shekel as an atonement, to make sure that no one suffers (Makom Shmuel, quoted by Shu’t Tzitz Eliezer 7:3). This last approach suggests that the verse When you will take the headcount of the children of Israel according to their numbers be explained in the following manner: When you take a regular census of the children of Israel, each man should give atonement for his life to Hashem when counting them – after you conduct your census, each person should provide a half-shekel to make sure no harm results. Indeed, the census could cause harm, but that does not necessarily mean that the Torah prohibited it. However, the stories of Shaul and the verse in Hoshea prove that the Torah prohibited counting Jews directly, since Shaul counted the people by counting sheep, rather than conducting a census and having them all donate half a shekel as atonement.

(4) One can interpret the verse in Ki Sissa to mean that the generation of the Desert, who had worshipped the eigel hazahav, the Golden Calf, was at risk and that therefore counting them might cause a plague (Maharsha to Yoma ad loc.; see also Ohr Hachayim to Shemos 30:2). However, one cannot prove from Ki Sissa that there is an inherent prohibition or risk in counting Jews when they have not violated such a grievous sin. However, the stories of Shaul or the verse in Hoshea prove that one may not count Jews even when they did not violate serious prohibitions.

Thus, we find several answers to explain why the Gemara did not consider the Torah source as adequate proof to prohibit counting the kohanim in the Beis Hamikdash, but, instead, rallied proof from later sources. As we will see shortly, there are actual distinctions in practical halacha that result from these diverse explanations. But first, a different question:

Counting from a List

For the purposes of fulfilling a mitzvah, may one count Jews by listing their names, and then count their names? Is this considered counting people indirectly, since one is counting names and not people, or is this considered counting the people themselves?

Advertising Campaigns to Help the Needy

The idea of having creative advertising campaigns in order to generate tzedakah funds did not originate with Oorah or Kupat Ha’ir. About 200 years ago, Rav Yisrael of Shklov, a major disciple of the Vilna Gaon and an author of several scholarly Torah works (including Taklin Chadtin on Yerushalmi Shekalim and Pe’as Hashulchan on the agricultural mitzvos), was organizing a fundraising campaign for the Yishuv in Eretz Yisrael in which he wanted to link donors to individual beneficiaries by listing the needy of Eretz Yisrael by name. Rav Yisrael held that this did not violate the prohibition of counting Jews, since it involved an indirect count by counting names on a list, for the sake of fulfilling a mitzvah. However, the Chasam Sofer disagreed, contending that counting names on a list is considered counting people directly. Even though one is not looking at their faces when counting them, counting people from a list is considered counting the person, and not counting their finger, leg, half-shekel, lamb or pottery shard (see Koveitz Teshuvos Chasam Sofer #8; Shu’t Kesav Sofer, Yoreh Deah #106). We will see shortly that this dispute exists to this day.

The Census

Is the State of Israel permitted to conduct a census of its population? Does an individual violate the mitzvah by being a census taker, or by providing the census takers with his information?

This question was hotly debated by halachic authorities, even when the pre-state Zionist organizations began counting the Jewish population, and continued with the censuses of the State of Israel. Several reasons are provided by those who permitted taking a census, the primary one being that determining how to provide proper medical, educational, economic and safety servicing for a large population requires knowing how many people there are. These authorities accepted that this qualifies as a dvar mitzvah, and that counting by list, or via computer and machine calculation is considered indirect counting (Shu’t Mishpatei Uziel 4:2; Noam XV).

On the other hand, several prominent poskim prohibited taking the census or participating in it (Shu’t Tzitz Eliezer 7:3). On the 27th of Iyar, 5732 (May 11, ’72), the Steipler Gaon released a letter stating the following:

In the coming days, there will be census takers counting the Jewish people. One should be careful not to answer them at all, to tell them that it is forbidden to take a census, and that there is the possibility of a Torah violation, as explained in the Gemara, Yoma 22, the Rambam in the fourth chapter of Temidim and Musafim, and the Ramban in Parshas Bamidbar. Furthermore, the Tosafos Rid in Yoma writes that it is prohibited to do so even indirectly when no mitzvah is accomplished. The Kesav Sofer explains… that it is prohibited even through writing. Furthermore, taking a census involves the possibility of danger.

At the same time, the Beis Din of the Eidah Hachareidis also issued a letter prohibiting participating in the census or answering any questions from the census takers, reiterating that they had banned this practice ten years earlier.

After publishing a responsum in which he prohibited participating in the census, the

Tzitz Eliezer (7:3) was asked whether someone calculating the numbers of people who made aliyah may count how many people there are. He answered that for the purposes of a mitzvah, one may count indirectly. However, we should note that such figures are often counted simply for curiosity or publicity, which the Tzitz Eliezer prohibits (22:13).

In a more recent responsum from Rav Vozner (Shu’t Shevet Halevi 9:35), dated Elul 24 5755 (September 19, ’95), he writes that the heter of taking a census because of divrei mitzvah applies only if the statistics are used exclusively for divrei mitzvah, something that is not followed. However, he permits the census for a different reason — because they count the entire population of Israel, not specifically Jews. Furthermore, even though the census in Israel includes a breakdown into religious groups, since thousands of those who are listed by the government as Jewish are not, Rav Vozner does not consider this as counting Jews. He adds that since no one is counted by name or family, but there is simply raw data collected, and the data does not correlate at all to the number of Jews, he has no halachic objection to participating in the census.

On the basis of Rav Vozner’s responsum, there certainly should be no objection to participating in the United States census, since this involves counting people and does not count Jews.

Conclusion

Parshas Ki Sissa, which should appear to be the Torah source for this mitzvah, begins with the words “Ki sissa es rosh bnei Yisrael.” Although the explanation of this pasuk is “When you count the members of Bnei Yisrael,” literally, the words can be translated as “When you lift up the heads of Bnei Yisrael.” The question is why did the Torah use this expression rather than say more clearly that it is defining how to count the Jewish People.

Rav Moshe Feinstein (Darash Moshe, Ki Sissa) explains as follows: When someone realizes that he did something wrong, that individual may justify what he did by saying, “I am not important. What difference does it make if I do not do what is expected of me?” Unfortunately, this type of mistaken humility can become a person’s undoing.

Ki Sissa” – “When you lift up” counteracts this way of thinking. Every Jew is as important as the greatest of all Jews: The biggest tzaddik and the seemingly unimportant Jew both give the same half-shekel. This “lifts up” every individual – you do count, and what you do is important!

To Dew or Not to Dew

Photo by Denk900 from FreeImages

Question #1: To dew or not to dew

“Why does nusach Sfard recite morid hatal during the summer davening and nusach Ashkenaz does not?”

Question #2: Sanctity of Eretz Yisroel?

“I know that many agricultural mitzvos, such as terumos, maasros and shemittah, apply only in Eretz Yisroel. But why does everyone in Eretz Yisroel recite morid hatal? What does the sanctity of Eretz Yisroel have to do with whether we recite morid hatal or not?”

Question #3: Where am I?

“In error, I recited vesein tal umatar during the davening on Chol Hamoed Pesach. Someone told me that I do not recite Shemoneh Esrei again, because I live in the United States. What difference does it make where I live?”

Background

This article will explore the background behind the variant customs regarding the recital of morid hatal. I note that during the time of the rishonim, there were various other nuscha’os, versions of the text, all now in disuse, including one text used during the winter months, “morid hagoshem” without the preceding words mashiv haruach, and another version, mashiv haruach umorid hageshem vehatal, adding a reference to dew during the winter months.

Mashiv haruach in the summer?

Furthermore, between Pesach and Sukkos there is another version, mashiv haruach umorid hatal, which, although included in tefillas tal that we recite in shul on the first day of Pesach, has for the most part fallen into disuse except for those who follow nusach hagra.

Introduction

At this point, let us begin with the basics. The second brocha of the Shemoneh Esrei is called “Gevuros,” because it describes Hashem’s greatness, and therefore begins with the words Atah Gibor, “You are great.” Let us study the text of the brocha, which, upon even cursory examination, is replete with redundancy.

“You, Hashem, are powerful forever! You revive the dead; You are abundantly able to save.” It is at this point that the words mashiv haruach umorid hagoshem, morid hatal, or their alternatives are added, depending on custom and time of year. We can ask, “Why, indeed, is mashiv haruach umorid hagoshem inserted at this point?”

The brocha then continues: “He provides the living with loving kindness. He revives the dead with great mercy. He supports those who are falling, heals the ill, releases the bound and fulfills His promise to those who sleep in the earth. Who is like You, the Master of might, and who is comparable to You, King Who brings death, restores life and brings the sprouting of salvation. You are faithful to revive the dead. Blessed are You, Hashem, Who brings the dead to life.”

Four resurrections

The Ritva (Taanis 2a) notes that the brocha contains four references to techiyas hameisim, resurrection, which is seemingly highly redundant. They are:

1. “You, Hashem, are powerful forever! You revive the dead;”

2. “He revives the dead with great mercy.”

3. “King Who brings death (and) restores life.”

4. “You are faithful to revive the dead.”

Four types of resurrection

The Ritva explains that there is no redundancy, because each of the four refers to a different type of resurrection.

(1) The first refers to rain that provides food for life. In the words of the Talmud Yerushalmi, “Just as techiyas hameisim brings life to the world, so rain brings life to the world.” Now we understand why mashiv haruach is recited just at this point of the Shemoneh Esrei.

(2) The second is when Hashem brings people back from the brink of their demise, be it illness or other travail.

(3) The third is when the prophets, such as Eliyahu and Elisha, brought people back to life.

(4) The fourth is a reference to the ultimate techiyas hameisim.

Mashiv haruach umorid hagoshem

The Mishnah rules that between Sukkos and Pesach one should add mashiv haruach umorid hagoshem to the second brocha of Shemoneh Esrei. The Gemara states that one may recite mashiv haruach, which praises Hashem for providing wind, or morid hatal, which praises Hashem for providing dew, but that neither of these praises is required. To quote the Gemara: “Concerning dew and winds, our Sages did not require reciting them, but if he wants to, he may” (Taanis 3a). The Gemara proceeds to ask why this is true, to which it answers that winds and dew never cease. Praising Hashem for their daily occurrence is similar to praying that the sun rise in the morning. Although it is absolutely essential for our existence, Chazal did not institute a special prayer for this. For this reason, in the time of the rishonim, several different customs developed. Some thanked Hashem for the wind all year round, whereas others never recited such a prayer at all, neither in summer nor in winter. There were those who thanked Hashem for providing dew all year round, and those who never did.

With time, one practice became accepted. When we thank Hashem for rain (which is required), we also thank him for wind. Notwithstanding the statement of the Gemara that it is not required to say mashiv haruach, the universal custom is to say it when we say morid hagoshem. This is because the wind that accompanies the rain helps keep the ground from becoming too wet (Mishnah Berurah 114:11).

At this point, we understand the basic brocha. We can also understand why Chazal instituted mashiv haruach umorid hagoshem in the winter months, particularly in Eretz Yisroel and Bavel, when it rains only at that time of year.

Forgot mashiv haruach umorid hagoshem

The Talmud Yerushalmi rules: “If it is the season when he should say mashiv haruach umorid hagoshem, and he said tal, he is not required to repeat the Shemoneh Esrei.” Yet, the Yerushalmi quotes another source that if someone neglected to recite mashiv haruach umorid hagoshem or vesein tal umatar, he must repeat Shemoneh Esrei. The Yerushalmi answers that this latter source is discussing a case when someone said neither morid hatal nor morid hagoshem; in this instance, he must repeat Shemoneh Esrei. But if he mentioned tal, and not geshem, he does not repeat Shemoneh Esrei. This ruling is accepted.

Birkas Hashanim

As we know, Chazal also instituted reciting a request for rain, vesein tal umatar, in the ninth brocha of Shemoneh Esrei, birkas hashanim. The difference between mashiv haruach umorid hagoshem, “He who causes the wind to blow and the rain to fall,” and vesein tal umatar, “Grant dew and rain upon the face of the earth,” is that the first is praise of Hashem and, therefore, it is inserted into the second brocha of our davening, both on weekdays and Shabbos, since the first three brochos of the Shemoneh Esrei are devoted to praise. The second is a prayer beseeching Hashem to provide rain, and as such is recited in birkas hashanim, the appropriate brocha of the weekday Shemoneh Esrei.

Missed them

Should one forget to recite either mashiv haruach umorid hagoshem or vesein tal umatar when required, one is obligated to repeat the Shemoneh Esrei. However, there is a halachic difference between the two that is already noted by the Tur. Should one recite morid hatal in the second brocha, praising Hashem for providing dew, rather than mashiv haruach umorid hagoshem, one is not required to repeat the Shemoneh Esrei. Nevertheless, when required to recite vesein tal umatar, someone who recited only vesein tal and omitted a request for rain is required to repeat the Shemoneh Esrei.

To dew or not to dew

At this point, we can answer the first of our opening questions: Why do some people recite morid hatal during the summer davening, and others do (or should I say “dew”) not?

The answer is that, although one is never required to recite morid hatal, if he said it instead of saying mashiv haruach umorid hagoshem, he does not need to repeat the Shemoneh Esrei. Thus, there is an advantage to reciting it, because, should he recite it by mistake when he is required to say mashiv haruach umorid hagoshem, he does not need to repeat the Shemoneh Esrei. Similarly, someone who is uncertain whether to say mashiv haruach umorid hagoshem or not should recite morid hatal and they have fulfilled the requirement that Chazal created.

The minhag of nusach Sfard is to follow this approach, and that has also become the prevalent practice in Eretz Yisroel, even among those who daven nusach Ashkenaz. But it has nothing to do with being in Eretz Yisroel.

Sanctity of Eretz Yisroel?

We can also now answer the second of our opening questions:

“I know that many agricultural mitzvos, such as terumos, maasros and shemittah, apply only in Eretz Yisroel. But why do they recite morid hatal there? What does the sanctity of Eretz Yisroel have to do with whether we recite morid hatal or not?”

The answer to this question is historical, and not halachic. The origin of the Ashkenazic community of Eretz Yisroel was from the students of the Baal Shem Tov, who were all Chassidim and davened nusach Sfard, or from disciples of the Gra, who recited morid hatal in davening notwithstanding that they davened nusach Ashkenaz. Although there was a major influx of Ashkenazic Jews to Eretz Yisroel in the 1930’s, after the Nazis took power in Germany, for the most part they accepted the nusach Ashkenaz that was then practiced in Eretz Yisroel. This included reciting morid hatal in shmoneh esrei, reciting Hallel in shul with a brocha the night of the Seder, duchening daily, the omission of the brocha Baruch Hashem le’olam in weeknight maariv and various similar practices.

Where am I?

At this point, we have enough of an introduction that we can begin to understand the background to the last of our opening questions: “In error, I recited vesein tal umatar during the davening on Chol Hamoed Pesach. Someone told me that I do not recite Shemoneh Esrei again, because I live in the United States. What difference does it make where I live?” First, let us examine the following story shared by the Gemara (Taanis 14b):

“The people of the city of Nineveh (in contemporary Iraq) sent the following shaylah to Rebbe: Our city requires rain even in the middle of the summer. Should we be treated like individuals and request rain in the brocha of Shema Koleinu, or like a community and recite ve’sein tal umatar during the brocha of Boreich Aleinu? Rebbe responded that they are considered individuals, and should request rain during the brocha of Shema Koleinu.”

The Gemara subsequently demonstrates that the tanna Rabbi Yehudah disagreed with Rebbe, and contended that they should recite vesein tal umatar in the brocha of Boreich Aleinu.

This controversy recurred in the times of the early amora’im, approximately one hundred years later, when the disputants were Rav Nachman and Rav Sheishes. Rav Sheishes contended, as did Rebbe, that during the summer the Nineveh residents should recite vesein tal umatar in Shema Koleinu, whereas Rav Nachman ruled that they should recite it in Boreich Aleinu, following Rabbi Yehudah. The Gemara concludes that it should be recited in Shema Koleinu, and this is the conclusion of all halachic authorities.

Why not add?

Germane to understanding this passage of Gemara, a concern is raised by the rishonim. Halacha permits adding appropriate personal requests to the appropriate brocha of the Shemoneh Esrei. For example, one may include a prayer for the recovery of an individual during the brocha of Refa’einu, or request assistance for Torah study into the brocha of Chonein Hadaas. The Gemara (Avodah Zarah 8a) rules that someone who needs livelihood may add a personal supplication to the brocha of Boreich Aleinu. Therefore, the question rises: If one may add his personal request for parnasah, why could the people of Nineveh not add their own personal requests for rain during Boreich Aleinu?

The rishonim present two answers to this question:

1. Since rain in the summer months can be harmful in some places, one may not pray for rain in birkas hashanim when this prayer is detrimental to others. A request for livelihood is different, since granting a respectful livelihood is never harmful to someone else.

2. This is the version of the prayer that Chazal instituted for the winter months, and they established a different text for the summer months. Therefore, reciting vesein tal umatar in birkas hashanim during the summer conflicts with the text that Chazal established for this brocha, in Hebrew called the matbei’a she’tav’u chachamim. One is not permitted to change the text of Chazal’s established prayers, although one may add personal supplications to them.

The Rosh understands that Nineveh could not recite their own personal request for rain in Boreich Aleinu because a city cannot make its own policy regarding the text of a brocha, but an entire country, defined as a large area, may. For this reason, he ruled that in Spain or Germany, where they needed rain after Pesach, they could recite Vesein Matar in Boreich Aleinu whenever their country needs rain.

Although the opinion of the Rosh is not accepted, someone who erred and davened in a way that the Rosh considers correct, should not repeat the Shemoneh Esrei (Shulchan Aruch, Orach Chayim 117:2).

Conclusion

Man was created by Hashem as the only creation that has free choice. Therefore, our serving Hashem and our davening is unique in the entire spectrum of creation. The power of tefillah is very great. Through tefillah one can save lives, bring people closer to Hashem, and overturn harsh decrees. We have to believe in this power; one should not think, “Who am I to daven to Hashem?” Rather, we must continually absorb the concept that Hashem wants our tefillos and He listens to them!

Understanding how much concern Chazal placed in the seemingly minor aspects of davening should make us even more aware of the fact that davening builds our relationship with Hashem. As the Kuzari notes, every day should have three high points — the three times that we daven. Certainly, one should do whatever one can to make sure to pay attention to the meaning of the words of one’s tefillah. We should gain our strength and inspiration for the rest of the day from these three prayers. Let us hope that Hashem will accept our tefillos together with those of Klal Yisrael!

The Haftarah for Pinchas

This week is the next to last week that the Eretz Yisroel community and the chutz la’aretz community are still reading different parshios, still due to the fact that acharon shel Pesach fell on Shabbos. This means that in Eretz Yisroel the haftarah for Parshas Pinchas is not one of the three read during the three weeks.

In most years, Parshas Pinchas falls during the three weeks and, as a result, its haftarah is Divrei Yirmiyahu, the opening words of the book of Yirmiyahu, which is the first of the telasa deparanusa, the three special haftaros we read during the “Three Weeks” of our national mourning (Rishonim quoting Pesikta). This haftarah is usually printed in the chumashim as the haftarah for Parshas Matos.

Since in Eretz Yisroel this is one of the fairly rare years when Parshas Pinchas is read before the fast of the seventeenth of Tamuz, there the haftarah printed in the chumashim for Parshas Pinchas is read. The haftarah, which is from the book of Melachim and begins with the words Ve’yad Hashem, describes how Eliyahu admonishes the wicked monarchs Achav and Izevel. Since the Torah reading and the haftarah reading respectively mention the attributes of zeal demonstrated by Pinchas and Eliyahu, this haftarah is very appropriate for this Shabbos. Furthermore, the Midrash (Pirkei D’Rabbi Eliezer, end of Chapter 29; Midrash Rabbah on this week’s parsha) states that Pinchas was Eliyahu, thus providing another reason to read this haftarah on this Shabbos.

It is actually unclear whether the Midrash means that Pinchas and Eliyahu were the same person, particularly since other sources in Chazal identify Eliyahu as being either from the tribe of Binyomin or of Gad (Bereishis Rabbah 71:9), both of which are impossible if Eliyahu was Pinchas, who was a kohen. The Gemara may simply mean that Eliyahu exhibited the same personality traits as Pinchas, since both displayed tremendous zeal in upholding Hashem’s honor.

The haftarah quotes Eliyahu as saying to Hashem: Kano kineisi laHashem Elokei Tzeva’os ki azvu berischa bnei Yisrael, I have acted zealously on behalf of Hashem the G-d of Hosts, for the Children of Israel have forsaken your covenant (Melachim 1:19:10), an allegation Eliyahu soon repeats (ibid. Verse 14). According to the Midrash, Eliyahu accused Bnei Yisrael of abrogating bris milah. As a response, Hashem decreed that Eliyahu will be present at every bris to see that the Jews indeed fulfill this mitzvah. Chazal therefore instituted that there should be a seat of honor for Eliyahu at every bris (Pirkei D’Rabbi Eliezer, end of Chapter 29; Zohar 93a).

Indeed, Jews view the mitzvah of bris milah dearly, and have accepted to observe this mitzvah in extremely difficult circumstances. Since the mitzvah of milah is so dear, we celebrate it as a happy occasion even during the three weeks and the nine days, periods of time in which we otherwise are accustomed to mourn. For this reason, the mohel, sandek, and parents of the baby may shave or get a haircut in honor of the bris, and during the Nine Days we serve meat meals in honor of the occasion.

We should also remember that Eliyahu is not only the malach habris, the angel who attends the bris, but also represents Pinchas, the bringer and angel of peace.

Since the discussion for haftarah of Pinchas is fairly short, I am adding another short article about a different, anomalous kerias haTorah situation:

How can this happen?

Kwiz Kwestion:

Someone received revi’i, the fourth aliyah, Shabbos morning, and, later that day, received back-to-back aliyos?

This question is not at all theoretical. I actually experienced it once. How did this happen?

Explaining the question fully provides a bit of a hint at the answer. Ordinarily, the only time someone receives back-to-back aliyos is when there is no levi in shul, in which case the kohen who receives the first aliyah also receives the second aliyah, that usually reserved for a levi. A kohen receives the aliyah because kohanim are members of the tribe of levi, and the same kohen receives the aliyah, rather than spreading the wealth around by giving a different kohen the second aliyah because of a rule ein kor’in lekohen achar kohen “We do not call up two consecutive kohanim.” Chazal ruled that this is prohibited because of concern that someone will think that, after calling up the first kohen, they discovered a halachic problem with his status and therefore needed to call up a different kohen (Gittin 59b).

Now, as a kohen I can tell you that it is a very common occurrence that I receive back-to-back aliyos, one as a kohen and the other bimkom levi. But how did I manage to get revi’i without the gabbai making an error? A kohen always receives either the first aliyah of the Torah, maftir, or acharon. Now, since revi’i is never maftir or acharon, how could a kohen ever receive the aliyah of revi’i?

One Shabbos I attended a family bar mitzvah, where the minyan was only family members. Not only am I a kohen, but so are all my brothers and sons, as well as my nephew, the bachur habar mitzvah. Virtually everyone else in attendance at the minyan made in honor of the bar mitzvah was a kohen. The only non-kohanim in attendance were the bachur’s maternal grandfather, who is a yisroel, and a family friend who is a levi. Thus, the first three aliyos were: a kohen (one of the family members), the levi guest and the maternal grandfather, who received shelishi.

Now is where the fun starts. All other attendees at the minyan were kohanim, and yet we have four more aliyos, plus maftir to give out! What is a gabbai supposed to do?

Fortunately, this question is discussed by the rishonim, with a wide variety of answers. The Beis Yosef cites four opinions what to do for the four remaining aliyos.

1. Call up the same three people who were called up as kohen, levi, and shelishi, as revi’i, chamishi and shishi, and then call up the original kohen for a third time as shevi’i.

2. The yisroel who was called up as shelishi should be called up again for revi’i, chamishi, shishi, and shevi’i since he is the only yisroel in the house.

3. Call up children for the remaining four aliyos.

4. Call up different kohanim for the remaining four aliyos.

What are the reasons behind each of these approaches?

1. Call up the same three people again

Although Chazal required that we call up seven people for aliyos on Shabbos, nowhere does it say that one may not call up the same person twice. As we see from the case when the kohen receives the aliyah of the levi, someone can be called up twice and count as two people receiving aliyos. Thus, our best way to resolve this situation is to call up the same three people again, which avoids calling up two kohanim one after the other. We also avoid calling up a kohen for an aliyah that implies that he is not a kohen, except for the one kohen who already was called up as kohen. Thus, no one should make a mistake that a kohen has any problem with his pedigree.

2. Call the yisroel for five consecutive aliyos

At the time of the Mishnah and Gemara, there was no assigned baal keriyah, and the person who received the aliyah was expected to read for himself. The institution of an assigned baal keriyah began in the time of the rishonim, when it became a common problem that someone called up for an aliyah was unable to read the Torah correctly, thus calling into question whether the community fulfilled the mitzvah of kerias haTorah.

However, even during the days of the Mishnah it occasionally happened that a minyan of Jews did not include seven people who could read the Torah correctly. The Tosefta, a source dating back to the era of the Mishnah but not included in the Mishnah, discusses a case in which there is only one person in the minyan who is capable of reading the Torah. What do we do? The Tosefta (Megillah 3:5) rules that we call this person up to the Torah seven consecutive times in order to fulfill the mitzvah of seven aliyos.

Based on this Tosefta, some explain that since we cannot call up two kohanim one after the other, when we have only one Yisroel in attendance, we call him to the Torah for all the yisroel aliyos (Beis Yosef, based on his understanding of the Mordechai).

3. Call up children

Our practice is that we do not call a child up to the Torah because it is not a sign of respect that a child read the Torah for a community (see Megillah 23a). From this comment, we see that, other than this concern, a child may have an aliyah, even though he is underage to fulfill a mitzvah.

Therefore, Rabbeinu Yeruchem rules that, in the situation at hand, we should call up children for the remaining aliyos. Apparently, he considers this to be a better solution than calling up someone who has already received an aliyah. The only time we can give someone two aliyos is to a kohen when there is no levi in shul. Therefore, our only alternative is to suspend the community honor and call up children for the missing aliyos.

If there are no children in attendance, Rabbeinu Yeruchem rules that we cannot continue the reading of the Torah!

4. Call up consecutive kohanim

All the approaches we have quoted thus far contend that there is never any exception to the rule that one may not call up two kohanim consecutively. However, there are rishonim who dispute this assumption, contending that, when it is obvious to all attendees that the reason you called two kohanim consecutively was because there were no other alternatives, there is no concern that someone will think one of the kohanim has a yichus problem, and therefore Chazal were not gozeir.

The Rashba contends that when everyone in attendance realizes that there are only kohanim in the minyan, we simply call up consecutive kohanim. There is no concern not to call one kohen after another in this instance.

The Shulchan Aruch concludes that the halacha follows the Rashba, and, to the best of my knowledge, this approach is accepted by all late halachic authorities. Thus, we now have answered our opening conundrum: How did I receive revi’i, the fourth aliyah, on Shabbos morning, and, later that day, receive back-to-back aliyos?

Nu, so, what is new?

The laws of Chodosh

By Rabbi Yirmiyohu Kaganoff

Question #1: New mitzvah?!

“When I was young, I do not think I ever heard about a prohibition called chodosh, or that something was yoshon. These days, I am constantly hearing these terms. Do we now have a new mitzvah?”

Question #2: New\Old Visitor

“We have decided to stay permanently in Eretz Yisrael, but we visit the United States a few times a year. Do we need to be concerned about chodosh when we visit?”

The Basics

Before addressing the issue underlying both questions, which is whether the prohibition of chodosh applies outside Eretz Yisrael, we must first study some essential details of the mitzvah. The Torah teaches in parshas Emor:

“Bread, sweet flour made from toasted kernels, or the toasted kernels themselves, may not be eaten until that very day – until you bring the offering to your G-d. This is a law that you must always observe throughout your generations in all your dwelling places” (Vayikra 23:14). “That very day” refers to the second day of Pesach, the day that the korban omer, the “offering” mentioned in the pasuk, is brought. (This is the same day that we begin counting the omer, a practice we continue until Shavuos.)

The Mishnah (Menachos 70a) explains that this mitzvah applies only to the five species that we usually categorize as grain, which Rashi (Pesachim 35a) defines as wheat, barley, spelt, oats and rye. The Gemara (Menachos 70b) demonstrates that the laws of chodosh apply to the same varieties of grain that can become chometz.

What Permits the New Grain?

We should note that the Torah mentions two different factors that permit the new grain – it “may not be eaten until that very day – until you bring the offering to your G-d.” This seems to be a bit contradictory. What permits the new grain, the day or the offering that transpires in the course of the day?

Will It be Brought?

The Gemara (Menachos 68a) concludes that it depends on whether a korban omer will be offered that particular year. Until the Beis Hamikdash was destroyed, a korban omer was brought annually, and offering this korban permitted the new grain, thereby fulfilling “may not be eaten… until you bring the offering to your G-d.” After the Beis Hamikdash was destroyed, it is the day that permits the new grain.

There is a further question: When there is no korban omer at what point during the day does the new grain become permitted?

The Gemara quotes a dispute concerning this fact, whether, is it the beginning of the day or its end. The Gemara concludes that even those who permit the new grain at the beginning of the day, this is only min haTorah, but they agree that miderabbanan the new grain is not permitted until the day ends (Sukkah 41b).

“New” Grain versus “Old” Grain

This new grain is called chodosh, literally, new. Once Pesach passes, the grain is called yoshon, old, even though it may have been planted only a few days before. The promotion from chodosh to yoshon transpires automatically on the second day of Pesach – all the existing chodosh becomes yoshon grain on that day, even that which is still growing. The only requirement is that by then the grain has taken root. Thus, designating the grain as “old” does not mean that it is either wizened or rancid. Grain planted in the late winter or early spring often becomes permitted well before it even completed growing. On the other hand, grain that took root after the second day of Pesach is categorized as “new” grain that may not be eaten until the second day of the next Pesach, the following year.

How Do We Know That It Is Newly Rooted?

Since most of us spend little time subterraneanly, how are we to know when the newly planted seeds decided to take root? This question is already debated by the Tanna’im. The halachic authorities dispute whether we assume that seeds take root three days after planting or not until fourteen days after planting. If we assume that they take root in only three days, then grain planted on the thirteenth of Nisan is permitted after the sixteenth. This is because the remaining part of the thirteenth day counts as the first day, and the fifteenth day of Nisan (the first day of Pesach) is the third day, and we therefore assume that the new grain rooted early enough to become permitted. However, grain that was planted on the fourteenth, Erev Pesach, is forbidden until the following year (Terumas Hadeshen #151; Pischei Teshuvah, Yoreh Deah 293:4, 5; Aruch Hashulchan).

According to those who conclude that it takes fourteen days to take root, the grain that is planted on the thirteenth does not become permitted until the next year. In addition, any grain planted on the third of Nisan or afterwards will not be permitted until the coming year, whereas that planted on the second of Nisan becomes permitted. We count the second of Nisan as the first day, which makes the fifteenth of Nisan the fourteenth day, and the grain took root early enough so that the sixteenth of Nisan permits it (Nekudos Hakesef; Dagul Meirevavah; Shu”t Noda Biyehudah 2:Orach Chayim:84).

What’s New in Chutz La’aretz?

Now that we understand some basic information about chodosh, we can discuss whether this mitzvah applies to grain growing outside Eretz Yisrael. Following the general rule that agricultural mitzvos, mitzvos hateluyos ba’aretz, apply only in Eretz Yisrael, we should assume that this mitzvah does not apply to grain that grew in chutz la’aretz. Indeed, this is the position of the Tanna Rabbi Yishmael (Kiddushin 37a). However, Rabbi Eliezer disagrees, contending that the mitzvah applies also in chutz la’aretz.

This dispute is based on differing interpretations of an unusual verse. When closing its instructions concerning the mitzvah of chodosh, the Torah concludes: This is a law that you must always observe throughout your generations in all your dwelling places.” Why did the Torah add the last words, “in all your dwelling places”? Would we think that a mitzvah applies only in some dwellings and not in others?

The Tanna’im mentioned above dispute how we are to understand these unusual words. Rabbi Eliezer explains that “in all your dwelling places” teaches that this prohibition, chodosh, is an exception to the rule of mitzvos hateluyos ba’aretz and applies to all your dwelling places – even those outside Eretz Yisrael. Thus, although we have a usual rule that mitzvos hateluyos ba’aretz apply only in Eretz Yisrael, the Torah itself taught that chodosh is an exception and applies even in chutz la’aretz.

Rabbi Yishmael explains the words “in all your dwelling places” to mean the mitzvah applies only after the land was conquered and settled. As a result, he contends that chodosh indeed follows the general rule of agricultural mitzvos and applies only in Eretz Yisrael.

The New Planting

When a farmer plants his crops depends on many factors, including what variety or strain he is planting, climate and weather conditions, and even perhaps his own personal schedule. At times in history, even non-Jewish religious observances were considerations, as we see from the following incident:

The Rosh reports that, in his day, whether most of the new grain was chodosh or yoshon depended on when the gentiles’ religious seasons fell out. Apparently, in his day sometimes the gentiles planted well before Pesach, and in those years there was no chodosh concern, since the new grain became permitted while it was still growing. However, there were years in which the gentiles refrained from planting until much later, and in those years the new grain was chodosh (Shu”t HaRosh 2:1). In addition, they had a practice not to plant during the xian holiday season that they call Lent. Sometimes Lent fell during Pesach and the xians planted before, and sometimes it fell earlier and they planted after Pesach, in which case there was a chodosh problem. We therefore find the rather anomalous situation in which the Rosh needed to find out exactly when the gentiles observed their religious month to know whether the grain was chodosh or yoshon.

What is New in Agriculture?

But one minute — the Rosh lived in Europe, first in Germany and then in Spain. Why was he concerned about chodosh? Should this not be an agricultural mitzvah that does not apply to produce grown outside of Eretz Yisrael? From the citation above, we see that the Rosh ruled that chodosh is prohibited even in chutz la’aretz. The Rosh is not alone. Indeed, most, but not all, of the Rishonim and poskim conclude that chodosh applies to all grain regardless of where it grows, since we see from the Gemara that chodosh was practiced in Bavel, even though it is outside Eretz Yisrael (Menachos 68b). However, notwithstanding that the Rosh, the Tur and the Shulchan Aruch all prohibit chodosh grown in chutz la’aretz, the traditional approach among Ashkenazic Jewry was to permit the use of new grain. Why were they lenient when most authorities rule like Rabbi Eliezer that chodosh is prohibited even outside Eretz Yisrael?

Later authorities suggest several reasons to permit consuming the new grain.

Doubly Doubtful

Many authorities permitted the new grain because the new crop may have been planted early enough to be permitted, and, in addition, the possibility exists that the available grain is from a previous crop year, which is certainly permitted. This approach accepts that chodosh applies equally in chutz la’aretz as it does in Eretz Yisrael, but contends that when one is uncertain whether the grain available is chodosh or yoshon, one can rely that it is yoshon. Because of this double doubt, called a sefeik sefeika, many major authorities permitted people to consume the available grain (Rema, Yoreh Deah 293). However, we should note that this heter is dependent on available information, and these authorities agree that when one knows that the grain being used is chodosh one may not consume it.

The Rosh accepted this approach, and was careful to monitor the planting seasons so as to ascertain each year whether the grain was planted in a time that caused a chodosh issue. In years that there was a chodosh problem, he refrained from eating the new grain – however, it is interesting to note, that he was extremely careful not to point out his concerns to others. He further notes that his rebbe, the Maharam, followed the same practice, but said nothing about this to others. Thus, we see that some early gedolim were strict for themselves about observing chodosh but said nothing to others out of concern that they would be unable to observe chodosh. This practice was followed in the contemporary world by such great luminaries as Rav Yaakov Kamenetsky, who was personally stringent not to eat chodosh, but was careful not to tell anyone, even family members, who followed the lenient approaches that I will soon share.

Another Heter

Other authorities permitted the chutz la’aretz grain, relying on the minority of early poskim who treat chodosh as a mitzvah that applies only in Eretz Yisrael (Taz; Aruch Hashulchan). This is based on a Gemara that states that when something has not been ruled definitively, one may rely on a minority opinion under extenuating circumstances (Niddah 9b).

This dispute then embroils one in a different issue: When the Gemara rules that under extenuating circumstances one may rely on a minority opinion, is this true only when dealing with a rabbinic prohibition, or may one do so even when dealing with a potential Torah prohibition. The Taz and Aruch Hashulchan, who permitted chodosh for this reason, conclude that one may follow a minority opinion even when dealing with a potential Torah prohibition. The Shach rejects this approach, and concludes that one must be stringent when one knows that the grain is chodosh (Nekudos Hakesef. See also his Pilpul Behanhagos Horaah, located after Yoreh Deah 242; cf. the Bach’s essay on the same topic, published in the back of the Tur Yoreh Deah, where he rules leniently on this issue.)

The Bach’s Heter

Another halachic basis to permit use of the new grain is that chodosh applies only to grain that grows in a field owned by a Jew, and not to grain grown in a field owned by a non-Jew. Since most fields are owned by gentiles, one can be lenient when one does not know the origin of the grain and assume that it was grown in a gentile’s field, and it is therefore exempt from chodosh laws. This last approach, often referred to simply as “the Bach’s heter,” is the basis upon which most Ashkenazic Jewry relied.

We may note that the Rosh, quoted above, rejects this heter, and that Tosafos (Kiddushin 37a end of s.v. kol), the Tur and the Shulchan Aruch also reject this approach. Similarly, the above-quoted responsum from the Rosh explicitly rejects this logic and contends that chodosh applies to grain grown in a gentile’s field.

Nevertheless, common custom accepted this the heter that grain grown in a non-Jew’s field is exempt from chodosh; even many gedolei Yisroel accepted this approach. The Bach notes that many of the greatest luminaries of early Ashkenazic Jewry, including Rav Shachna and the Maharshal, were lenient regarding chodosh use in their native Europe. He shares that as a young man he advanced his theory that chodosh does not exist in a field owned by a gentile to the greatest scholars of that generation, and that they all accepted it.

The Bach himself further contends that although the Rosh in his responsum rejected this approach, the Rosh subsequently changed his mind, and in his halachic code, which was written after his responsa (see Tur, Choshen Mishpat, end of Chapter (72, he omits mention that the prohibition of chodosh applies to gentile-grown grain.

Thus, those residing in chutz la’aretz have a right to follow the accepted practice, as indeed did many, if not most, of the gedolei Yisrael. However, others, such as the Mishnah Berurah, rule strictly about this issue.

Until fairly recently, many rabbonim felt that those who are strict about the prohibition should observe the law of chodosh discreetly. Some contend that one should do so because they feel that observing chodosh has the status of chumrah, and the underlying principle when observing any chumrah is hatznei’ah leches – they should be observed modestly. (See Michtav Mei’eliyahu Volume 3, page 294.) Others feel that the practice of being lenient was based on an extenuating circumstance that is no longer valid, since yoshon is fairly available in most large Jewish communities, and that, on the contrary, we should let people be aware so that they can observe the mitzvah.

North American Hechsherim

The assumption of virtually all hechsherim is that unless mentioned otherwise, they rely on the halachic opinion of the Bach. Many decades ago, Rav Aharon Soloveichek pioneered his own personal hechsher that did not follow either the heter of the Bach or that of the Taz and the Aruch Hashulchan. He further insisted that the yeshivos that he served as Rosh Yeshivah serve exclusively food that did not rely on these heterim. Today, there are a few other hechsherim that follow this approach, whereas the majority of North American hechsherim accept the heter of the Bach.

With this background, we can now address the first question that began our article. “When I was young, I do not think I ever heard about a prohibition called chodosh, or that something was yoshon. These days, I am constantly hearing the term. Do we now have a new mitzvah?”

The answer is that the mitzvah is not new. When you were young, most halachic authorities either felt that one could rely on the opinion of the Bach, or felt that one should keep the topic quiet. Today, many feel that one may and should advertise the availability of yoshon products.

In addition, there is interesting agricultural background to this question. At one point in history, the flour commonly sold in the United States was from the previous year’s crop, and was always yoshon. Rav Yaakov used to monitor the situation, and when the United States no longer followed this practice, he began to freeze flour so that he would have a supply during the winter and spring months when chodosh is a concern.

In the spring and early summer, there is no concern about chodosh in the United States, since all fresh grain products then available became permitted on the sixteenth of Nisan. Usually, the earliest chodosh products begin coming to market is midsummer, and some products do not appear until the fall.

Visitors from Abroad

At this point, we can begin to answer the second question: “We have decided to stay permanently in Eretz Yisrael, but we visit the States a few times a year. Do we need to be concerned about chodosh when we visit?”

As I mentioned above, someone who lives in chutz la’aretz has the halachic right not to be concerned about observing chodosh on grain that grows in chutz la’aretz. The question is whether someone who has moved to Eretz Yisrael where the prevailing custom is to be stringent, and is now visiting chutz la’aretz has the same right. This matter is disputed, and I have discussed it with many poskim, most of whom felt that one should be machmir.

In Conclusion

In explaining the reason for this mitzvah, Rav Hirsch notes that one of man’s greatest enemies is success, for at that moment man easily forgets his Creator and views himself as master of his own success and his own destiny. For this reason, the Torah created several mitzvos whose goal is to remind and discipline us to always recognize Hashem‘s role. Among these is the mitzvah of chodosh, wherein we are forbidden from consuming the new grain until the offering of the korban omer, which thereby reminds us that this year’s crop is here only because of Hashem (Horeb, Section 2 Chapter 42). Whether one follows the Bach’s approach to the chodosh laws or not, one should make note every time he sees a reference to yoshon and chodosh to recognize that success is our enemy, and that humility is our savior.

The Torah of Rav Yehosef Schwartz

Since this parsha, Re’eih, discusses the different species of kosher animals, a topic that will be included in this article, it provides an opportunity to learn about a very unique talmid chachom and tzadik, Rav Yehosef Schwartz.

The Torah of Rav Yehosef Schwartz

Question #1: Which minyan?

“In the minyan factory shtiebel that I often attend, it sometimes happens that most of my minyan has already heard the entire Chazoras Hashatz and answered Kedushah and Kaddish before we assemble to daven. Does this present us with any halachic questions?”

Question #2: Which chayah?

“A gnu is not listed in the Torah among the seven chayos, kosher wild animals, although it has split hooves and chews its cud. Why is it not listed?”

Question #3: Which borders?

“Where exactly are the borders of Eretz Yisroel?”

Question #4: Which question?

“What do the preceding three questions have to do with one another?”

Answer:

Rav Yehosef Schwartz, an outstanding talmid chochom and oveid Hashem, was also probably the greatest cartographer of Eretz Yisroel in history. We will study some background of this very unusual personality, and learn some of his Torah.

Rav Yehosef Schwartz was born in 1804 in a small Bavarian village where his antecedents had dwelled for many generations. A contemporary of Rav Samson Raphael Hirsch, he shared many of Rav Hirsch’s characteristics. Both men identified themselves as having a very specific, particular mission in serving Hashem, and pursued it despite living among people who neither shared nor necessarily understood their vision. Both maintained total humility, notwithstanding their considerable accomplishments, personal and communal. Both ended up becoming prolific and original authors on Torah subjects, in spite of the fact that neither had intended to do so early in life. Both married women whom they recognized would assist them in fulfilling their life’s goals, notwithstanding the difference in age between them. Both attended German universities with the specific goal of attaining knowledge they felt was necessary for them to fulfill their mission, yet neither one of them completed the requirements for the coveted doctoral degree. Both were involved extensively in providing chesed for their brethren, both journeyed widely to execute this goal, and both relocated to accomplish what they saw as their specific mission in fulfilling Hashem’s will. Both studied kabbalah, yet couched their knowledge in ways that their readers would not realize that they had drunk from those springs. Neither was always understood by the great halachic authorities of their generation, but both were highly respected gedolim, whose original contributions have withstood the test of time.

Early Life

Rav Yehosef Schwartz was born in Flos, a small Bavarian town, where, already as a youth, he distinguished himself for his hasmodah and sincerity. After studying in yeshiva, he attended the University of Wurzburg for several years, studying the subjects he felt he needed to augment his Torah knowledge: astronomy, mathematics, natural sciences and classical languages. He had already become an exceptional talmid chochom with extensive knowledge of Talmud Bavli and Yerushalmi, poskim, and midrashic literature. Rav Schwartz is known primarily for his encyclopedic and original work in mapping out Eretz Yisroel, but as we will soon see, this reflects only a small aspect of his greatness.

While quite young, he had already developed a profound love for Eretz Yisroel. At age 24, in 1829, while still living in Germany, he published his first map of the Holy Land. He revised this map twice before he left Europe for Eretz Yisroel.

Go East, My Son

When he was in his late 20’s, he had become convinced that his personal tikun was to move to Eretz Yisroel, no small endeavor at the time, which he proceeded to do despite strong family pressure. Because of various wars and other difficulties, the trip from Germany to Eretz Yisroel took him two years to complete. He finally arrived in Eretz Yisroel on the 13th of Nissan 5593 (1833).

He had originally planned to settle in Tzefas, presumably because of the kabbalistic orientation of the community, but upon arriving in Eretz Yisroel, he was invited to visit Yerushalayim. Once he arrived there, he decided to take up residence there, and he remained there for the rest of his life.

As was not uncommon among Ashkenazim who lived in Eretz Yisroel at this time, he adopted the local Sefardi dress and many of their customs, yet he maintained his very Ashkenazi family name. He never became a member of any of the various kehillos to the exclusion of the others, but considered himself part of all communities.

Upon after arriving in Eretz Yisroel, he taught himself two more languages, Ladino and Arabic, both of which would help him in his future research.

Personal Life

Shortly after moving to Yerushalayim, he married a twelve-year-old orphan. He was 29 years old at the time. They had eight children, four sons and four daughters; unfortunately six of their children perished during Rav Schwartz’s lifetime from the rampant diseases that plagued the country. Rav Schwartz merited taking only one daughter of his to the chupah; a younger daughter married the year after his passing. Although only two of his children survived him, a large number of his descendants are living today.

For the rest of his life, his livelihood was provided by his family, particularly by his older brother, Rav Chaim Schwartz, a rov in Europe who eventually even provided for Rav Yehosef’s widow after his passing. Rav Yehosef kept an active and lengthy correspondence with this brother, who often published the letters he received from Rav Yehosef in various periodicals in Europe. Rav Chaim Schwartz encouraged Rav Yehosef to write and publish his seforim, and arranged that many of Rav Yehosef’s works were translated into German and published in Europe, shortly after they were written.

Rav Yehosef, himself, was known as a great provider of tzedokah, notwithstanding that he and his family always lived in dire poverty and that he, personally, followed a very ascetic lifestyle. He fasted frequently and slept little. He and his wife were heavily involved in many chesed projects, including much hachnosas orchim and providing for widows and orphans.

His Mussar

Many of the observations shared by Rav Schwartz show us his perspective of “mah rabu ma’asechah Hashem.” For example, he notes the tremendous chesed that Hashem provides for us daily by having night very gradually turn to day, and having day so gradually darken to become night. If the day were to change suddenly, we would find the results blinding.

His Travels

Rav Schwartz devoted much of his life to traveling extensively throughout Eretz Yisroel, although we see from much of his correspondence that this travel involved a great deal of danger. We also know that, on at least one occasion, he traveled to England and the United States to attempt to raise funds for the yishuv in Yerushalayim.

His Research

Despite his fame for this area of research, it represents only a small part of Rav Schwartz’s published material. One of his areas of extensive study was to accurately determine the halachos of halachic daybreak, sunrise, sunset and nightfall, a topic to which he devoted an untold number of trips to check how long it took to get light and to get dark. He writes that both in Eretz Yisroel and in chutz la’aretz, he checked the physical features of sunrise over 4000 times in order to understand the topic well. He noted that calculating how much time it takes from dawn to sunrise and from sunset to nightfall depends on one’s location. He also demonstrates that one can prove, by observation, that the earth is round.

He was original in his approaches. In numerous places, he quotes great earlier halachic authorities such as the Ibn Ezra, the Radak, or the Gra, and then rallies proof to show why he feels that their interpretations of the halachic sources or their mathematical calculations were inaccurate.

His Published Works

For many years after Rav Schwartz arrived in Eretz Yisroel, he did not write or publish anything, despite his brother’s entreaties that he do so. Eventually, he produced numerous works, some published in Hebrew and printed in Eretz Yisroel, others printed in various European languages, mostly translated abridgments of his Hebrew works. Rav Hirsch quotes Rav Schwartz in his commentary to Devorim Chapter 11, Verse 29. Some of Rav Schwartz’s published material was used during his lifetime to produce educational materials for religious schools in Europe, particularly in Germany.

In his lifetime, Rav Schwartz published seforim on the following topics:

Tolodos Yosef, on astronomy and the halachos of zemanim. This work is full of charts and other demonstrative evidence.

Tevuos Ha’aretz, on the details of the land of Israel. This work places particular emphasis on its borders, and it is replete with many of his own original maps and drawings.

Ma’asei Ha’aretz, a history of the Jewish people in Eretz Yisroel from the time of the churbon to his time, in which he divided the history into various eras. He included highly detailed descriptions of the different rishonim who lived in Eretz Yisroel and the communities in which they lived. He includes all his sources.

He also wrote on linguistics, philology and phonemics, but always with a Torah perspective on how this research demonstrates the correctness of one halachic practice over another, or how we can thereby understand a passage of Gemara or Midrash.

In addition, he published a volume of his own responsa, called Rosh Hashoni, on a very eclectic list of topics. For example, he wrote a teshuvah discussing whether someone traveling through several dangerous areas, as was the situation in Eretz Yisroel in his day, bentches gomel only upon arriving at his final destination, or whether each day he should bentch gomel upon safely arriving for the night at a different community (#58). He explains why we find no dispute in Chazal regarding when the day begins, although we find much dispute when the day ends (#19). He asks if someone who says his prayers in a vernacular may say the name of Hashem in Hebrew while doing so (#35). In another teshuvah, he discusses whether the Rambam changed his mind about the fact that Judaism has 13 ikorei emunah (#57). The basis of this question is that although the Rambam devotes much discussion to this topic in his commentary on the Mishnah, which he wrote in his youth, he makes no mention of this basic topic in the Mishneh Torah.

Some of Rav Schwartz’s responsa answer contemporary questions. For example, he was asked the following shailah about a shul that has several daily Shacharis minyanim: The people who daven at the later minyan have already arrived in shul while the earlier minyan is still davening and thus, they have already answered Borchu, and answered Kedushah. Do they still have a minyan to daven the regular Shacharis? Is it considered that they have already fulfilled the requirement of tefillah betzibur by listening to Chazaras Hashatz and therefore cannot repeat Shemoneh Esrei for that davening (#55)?

Mussaf Before Shacharis?

Here is another, even more contemporary, question that Rav Schwartz addresses. Someone arrives late for shul on Shabbos, and the tzibur is ready to daven Mussaf. Should he recite Mussaf together with the tzibur, so that he has the merit of tefillah betzibur, and then daven Shacharis, or should he daven in the proper order, Shacharis and then Mussaf (#30)? He concludes that someone in this scenario should join the minyan for Mussaf and then daven Shacharis.

Several of the questions he talks about are discussed extensively by other authorities of his time. For example, he discusses the situation of a gentile in the process of conversion who has undergone bris milah, but did not yet have the opportunity to immerse in a mikvah to complete his geirus. Is he still required to break Shabbos?

An interesting question Rav Schwartz discusses that I have found in no other responsa work is as follows: There are two people; one is a perfect tzadik, whereas the other was born with very bad traits and is striving to improve. Which of the two will be rewarded in greater measure by Hashem? (#34)

When Rav Schwartz passed on, he left behind, in addition to his published works, extensive notes, notebooks, and even several works ready for publication.

The Four Questions

At this point, we can now address our opening four questions:

Question #1: Which Minyan?

“In the minyan factory shtiebel that I often attend, it sometimes happens that most of my minyan has already heard the entire Chazoras Hashatz and answered Kedushah and Kaddish before we assemble to daven. Does this present us with any halachic questions?”

Question #2: Which Chayah?

“A gnu is not listed in the Torah among the seven chayos, kosher wild animals, yet it has split hooves and chews its cud. Why is it not listed?”

Question #3: Which Borders?

“Where exactly are the borders of Eretz Yisroel?”

Question #4: Which Question?

“What do the preceding three questions have to do with one another?”

As I am sure you surmised, the first three questions are discussed in Rav Schwartz’s writings. He devotes one of his responsa (#55) to the first question. Apparently, already in his day Yerushalayim had a shtiebel in which minyanim took place in different parts of a large beis medrash. Frequently, a group of people would have heard the entire repetition of Shemoneh Esrei before a section of the beis medrash was available for them to conduct their minyan. Can one still conduct Chazoras Hashatz, when every member of the assembled group has already heard a repetition of Shemoneh Esrei, albeit without having yet davened themselves? Rav Schwartz concludes that if the minyan assembled does not have six people who did not yet hear the repetition of Shemoneh Esrei, they cannot have a Chazoras Hashatz for their minyan. If you are faced with the same question, I suggest consulting your rav or poseik.

What’s Gnu?

The gnu, also known as a wildebeest, is a variety of antelope native to Africa. Since the gnu both chews its cud (ruminates) and possesses split hooves, seeming to be a kosher animal, Rav Schwartz was asked as follows: The Torah lists only ten varieties of kosher animals: three beheimos and seven chayos. Which one is the gnu?

Rav Schwartz answers that the gnu is the yachmur. He writes that he has correctly identified the nine other kosher animal species mentioned by the Torah, and writes which species they are. The only one left unidentified is the yachmor, which, by process of elimination, must be the gnu.

(Personally, I would suggest a different approach to answering this question, since there are, according to my information, 91 species of antelope known to mankind, all of which ruminate and have split hooves. One is probably forced to say that some of the terms of the Torah include far more than what we would consider to be one species.)

Responsa from Early Nineteenth-Century America

Rav Schwartz wrote several teshuvos based on questions he was asked during his trip to England and the United States. One question was whether a citrus fruit native to the West Indies qualified as an esrog. He first writes that there was no question that this fruit had never been grafted onto another species, since such fruits grow in the wild in an area where the local native population has no interest or knowledge about grafting, nor do they have related species on which to graft it. The remaining question was whether this fruit, which looked very different from any esrog he had ever seen, qualified as an esrog. He ruled that it did qualify, and reports that he used it to fulfill the mitzvah during his stay in North America.

The End

Based on our contemporary understanding of the report of Rav Schwartz’s physician, he contracted scarlet fever, which developed into meningitis and took his life when he was 61 years old. Thus ended the life of an intense oveid Hashem, who devoted himself to becoming a master of areas of Torah that had been completely untrodden before him. Yehi zichro boruch.

 

 

Praying for a Rainy Day when Traveling to or from Eretz Yisroel in November

Whereas in chutz la’aretz ve’sein tal umatar (the prayer for rain added to the beracha of Boreich Aleinu in the weekday shemoneh esrei) is not recited until the evening of December Fourth (this year; the exact date varies), people in Eretz Yisroel began reciting this prayer on the Seventh of MarCheshvan. This difference in practice leads to many interesting shaylos. Here are some examples:

Question #1:

Yankel, who lives in New York, is in aveilus, l”a, for his father, and tries to lead services at every opportunity. He will be visiting Eretz Yisroel during the month of November. Does he recite the prayer according to the Eretz Yisroel practice while there? Which version does he recite in his quiet shemoneh esrei? Perhaps he should not even lead services while he is there?

Question #2:

Does someone from chutz la’aretz who is currently attending yeshiva or seminary in Eretz Yisroel recite ve’sein tal umatar according to the custom of Eretz Yisroel or according to the chutz la’aretz practice?

Question #3:

Reuven lives in Eretz Yisroel, but is in chutz la’aretz on the Seventh of MarCheshvan. Does he begin reciting ve’sein tal umatar while in chutz la’aretz, does he wait until he returns to Eretz Yisroel, or does he follow the practice of those who live in chutz la’aretz?

In order to explain the halachic issues involved in answering these shaylos, we must first explain why we begin requesting rain in Eretz Yisroel on a date different from that in chutz la’aretz.

The Gemara (Taanis 10a) concludes that in Eretz Yisroel, one begins reciting ve’sein tal umatar on the Seventh of MarCheshvan, whereas in Bavel one begins reciting it on the sixtieth day after the autumnal equinox. (The Gemara’s method for calculating the autumnal equinox is not based on the solar year, but on a different calculation. The reason for this is beyond the scope of this article.) Someone who recites ve’sein tal umatar during the summer months in Eretz Yisroel must repeat the shemoneh esrei, since this request in the summer is inappropriate (Taanis 3b; Shulchan Aruch Orach Chayim 117:3).

WHY ARE THERE TWO DIFFERENT “RAIN DATES”?

Since Eretz Yisroel requires rain earlier than Bavel, Chazal instituted that the Jews in Eretz Yisroel begin requesting rain shortly after Sukkos. In Bavel, where it was better if it began raining later, reciting ve’sein tal umatar was delayed until later. This practice is followed in all of chutz la’aretz, even in places where rain is not seasonal, or where rain is needed earlier — although the precise reason why all of chutz la’aretz follows the practice of Bavel is uncertain (see Rashi and Rosh to Taanis 10a; Shu”t Rosh 4:10; Tur and Shulchan Aruch Orach Chayim 117, and my article on reciting ve’sein tal umatar in the southern hemisphere).

LOCAL CONDITIONS

If a certain city needs rain at a different time of the year, can they, or should they recite ve’sein tal umatar then? The Gemara (Taanis 14b) raises this question and cites the following story:

“The people of the city of Nineveh (in contemporary Iraq) sent the following shaylah to Rebbe: In our city, we need rain even in the middle of the summer. Should we be treated like individuals, and request rain in the beracha of Shma Koleinu, or like a community and recite ve’sein tal umatar during the beracha of Boreich Aleinu? Rebbe responded that they are considered individuals and should request rain during the beracha of Shma Koleinu.”

This means that an individual or a city that needs rain during a different part of the year should recite ve’sein tal umatar during the beracha of Shma Koleinu, but not as part of Boreich Aleinu.

NATIONAL CONDITIONS

Is a country different from a city? In other words, if an entire country or a large region requires rain at a different time of the year, should its residents recite ve’sein tal umatar during the beracha of Boreich Aleinu? The Rosh raises this question and contends, at least in theory, that a country should recite ve’sein tal umatar in Boreich Aleinu. In his opinion, most of North America and Europe should recite ve’sein tal umatar during the summer months. Although we do not follow this approach, someone who recites ve’sein tal umatar at a time when his country requires rain should not repeat the Shemoneh esrei, but should rely retroactively on the opinion of the Rosh (Shulchan Aruch and Rama 117:2). Similarly, someone in chutz la’aretz who recited ve’sein tal umatar as part of Boreich Aleinu in error after the Seventh of MarCheshvan should not repeat Shemoneh esrei afterwards, unless he lives in a country where rain is not necessary at this time (Birkei Yosef 117:3; cf. Shu”t Ohalei Yaakov #87 of the Maharikash,  who disagrees.).

With this introduction, we can now begin to discuss the questions at hand. What should someone do if he lives in Eretz Yisroel but is in chutz la’aretz, or vice versa, during the weeks when there is a difference in practice between the two places? As one can imagine, much halachic literature discusses this shaylah, although I am surprised to report that I found no discussion concerning this question dating back to the Rishonim. I found three early opinions, which I quote in chronological order:

Opinion #1

The earliest opinion I found, that of the Maharikash (Shu”t Ohalei Yaakov #87) and the Radbaz (Shu”t #2055), discusses specifically an Eretz Yisroel resident who left his wife and children behind while traveling to chutz la’aretz. (In earlier generations, it was common that emissaries from the Eretz Yisroel communities traveled to chutz la’aretz for long periods of time to solicit funds.) These poskim ruled that if the traveler is leaving his family behind in Eretz Yisroel, he should begin reciting ve’sein tal umatar on the Seventh of MarCheshvan, following the practice of Eretz Yisroel, regardless of whether he himself was then in Eretz Yisroel or in chutz la’aretz. However, if he is single, or alternatively, if he is traveling with his family, then when he begins reciting ve’sein tal umatar depends on whether he will be gone for the entire rainy season. If he leaves Eretz Yisroel before the Seventh of MarCheshvan and intends to be gone until Pesach or later, he recites ve’sein tal umatar according to the practice of chutz la’aretz. If he intends to return before Pesach, he recites ve’sein tal umatar beginning on the Seventh of MarCheshvan, even though he is in chutz la’aretz.

The key question here is, what is the criterion for determining when someone recites ve’sein tal umatar? These poskim contend that it depends on his personal need. If his immediate family is in Eretz Yisroel, it is considered that his personal need requires rain already on the Seventh of MarCheshvan. Therefore, he begins reciting ve’sein tal umatar on that date, even should he himself be in chutz la’aretz (Shu”t Igros Moshe, Orach Chayim 2:102).

Opinion #2

The Pri Chodosh (Orach Chayim 117) quotes the previous opinion (of the Maharikash and the Radbaz) and disputes their conclusion, contending that only one factor determines when the traveler begins reciting ve’sein tal umatar – how long he plans to stay abroad. If he left Eretz Yisroel intending to be away for at least a year, he should consider himself a resident of chutz la’aretz (for this purpose) and begin reciting ve’sein tal umatar in December. If he intends to be away for less than a year, he should begin reciting ve’sein tal umatar on the Seventh of MarCheshvan. Furthermore, the Pri Chodosh states that whether one leaves one’s immediate family behind or not does not affect this halacha.

These two approaches disagree fundamentally regarding what determines when an individual recites ve’sein tal umatar? According to Opinion #1 (the Maharikash and the Radbaz), the main criterion is whether one has a personal need for rain as early as the Seventh of MarCheshvan. According to Opinion #2 (the Pri Chodosh), the issue is whether one is considered a resident of Eretz Yisroel or of chutz la’aretz.

According to this analysis of Opinion #2, a resident of chutz la’aretz who intends to spend a year in Eretz Yisroel begins reciting ve’sein tal umatar on the Seventh of MarCheshvan, whereas, if he intends to stay less than a year, he follows the practice of chutz la’aretz (Pri Megadim; Mishnah Berurah; cf. however Halichos Shelomoh, Volume 1 8:28 pg. 107). However, according to Opinion #1, he would being reciting ve’sein tal umatar on the Seventh of MarCheshvan if he or his family intend to spend any time during the rainy season in Eretz Yisroel.

Opinion #3

The Birkei Yosef quotes the two above-mentioned opinions and also other early poskim who follow a third approach, that the determining factor is where you are on the Seventh of MarCheshvan. (See also Shu”t Dvar Shmuel #323.) This approach implies that someone who is in Eretz Yisroel on the Seventh of MarCheshvan should begin praying for rain, even though he intends to return to chutz la’aretz shortly, and that someone who is in chutz la’aretz on that date should not, even though he left his family in Eretz Yisroel.

Dvar Shmuel and Birkei Yosef explain that someone needs rain where he is, and it is not dependent on his residence. Birkei Yosef points out that if there is a severe drought where he is located, it does not make any difference if he lives elsewhere; he will be a casualty of the lack of water. This was certainly true in earlier generations, when water supply was dependent on local wells. Even today, when water is supplied via piping from large reservoirs, this opinion would still rule that the halacha is determined by one’s current location, and not one’s permanent residence.

Opinion #3 (the Birkei Yosef’s approach) is fairly similar to that of Opinion #1 (the Maharikash and the Radbaz), in that both approaches see the determining factor to be temporary need and not permanent residency. However, these two opinions dispute several details, including what is the ruling of someone in chutz la’aretz whose family remains in Eretz Yisroel. According to Opinion #1, this person begins ve’sein tal umatar on the Seventh of MarCheshvan, whereas Opinion #3 contends that he begins only when the other bnei chutz la’aretz do.

Why does Opinion #3 disregard his family being in Eretz Yisroel as a factor, whereas Opinion #1 is concerned with this fact? Birkei Yosef explains that praying for rain for one’s family when one is in chutz la’aretz is praying for an individual need, which one does in Shma Koleinu, not in Boreich Aleinu, since the rest of the community there has no need for rain. Opinion #1 presumably holds that praying for Eretz Yisroel when I am in chutz la’aretz is not considered praying for an individual, even though my reason to pray for rain in Eretz Yisroel is personal.

After analyzing these three conflicting opinions, how do we rule? Although the later poskim, such as the Mishnah Berurah, refer to these earlier sources, it is unclear how they conclude halachically. (See Shu”t Tzitz Eliezer 6:38, which contains a careful analysis of the words of the Mishnah Berurah on this subject.) Thus, an individual should ask his Rav what to do in each case.

TRAVELING AND RETURNING

What does one do if he travels and returns within these days? Assuming that he began to recite ve’sein tal umatar on the Seventh of MarCheshvan because he was in Eretz Yisroel (and he followed those opinions that rule this way), does he now stop reciting it upon his return to chutz la’aretz?

This question is raised by the Birkei Yosef (117:6), who rules that he continues reciting ve’sein tal umatar when he returns to chutz la’aretz.

What does one do if he is reciting ve’sein tal umatar, and the community is not, or vice versa — and he would like to lead the services? Birkei Yosef rules that he should not lead the communal services; however, if he forgot and did so, he should follow his own version in the quiet Shemoneh esrei and the community’s version in the repetition (Birkei Yosef 117:8). However, Rav Shlomoh Zalman Auerbach permitted him to lead the services, following the community’s practice in his public prayer and his own in his private one (Halichos Shelomoh 5:21; note that according to Igros Moshe, Orach Chayim 2:23, 29; 4:33 he should not lead the services.).

Let us now examine some of the shaylos we raised above:

Question #1:

Yankel, who lives in New York, would like to lead services when visiting Eretz Yisroel during the month of November.

According to all of the opinions involved, when davening privately Yankel should not recite ve’sein tal umatar until it is recited in chutz la’aretz, since he does not live in Eretz Yisroel, does not have immediate family living there, and was not there on the Seventh of MarCheshvan. As explained above, according to most opinions, he should not lead the services, since he is not reciting ve’sein tal umatar and the congregation is, whereas according to Rav Shlomoh Zalman Auerbach, he may lead the services. According to Birkei Yosef (Opinion #3 above), if he is in Eretz Yisroel on the Seventh of MarCheshvan, he should begin to recite ve’sein tal umatar then, since he now has a need for rain; he should continue to recite this prayer even when he returns to chutz la’aretz. However, in this case, when returning to chutz la’aretz, he should not lead services, according to most opinions, since he is reciting ve’sein tal umatar and they are not. If he forgot and led the services, he should recite ve’sein tal umatar in the quiet Shemoneh esrei but not in the repetition.

According to the Pri Chodosh (Opinion #2 above), if he is in Eretz Yisroel on the Seventh of MarCheshvan, he should not recite ve’sein tal umatar, since he lives in chutz la’aretz. Following this approach, he should not lead services when in Eretz Yisroel, but he may resume when he returns to chutz la’aretz.

Question #2:

Does someone attending Yeshiva or seminary in Eretz Yisroel, recite ve’sein tal umatar according to the custom of Eretz Yisroel or according to the chutz la’aretz practice?

The answer to this question will depend upon which of the above-quoted authorities one follows. According to Opinion #1 (the Maharikash, the Radbaz) and Opinion #3 (the Birkei Yosef), they should follow the practice of Eretz Yisroel, since they need the rain, while in Eretz Yisroel, even though they are not permanent Israeli residents. According to Opinion #2 (the Pri Chodosh), if they are staying for less than a year, they follow the practice of chutz la’aretz, whereas if they are staying longer, they should begin reciting it from the Seventh of MarCheshvan. Several people have told me that Rav Elyashiv ruled that they should recite ve’sein tal umatar while they are in Eretz Yisroel, unless they intend to return before the end of the rainy season.

Question #3:

Reuven lives in Eretz Yisroel, but is in chutz la’aretz on the Seventh of MarCheshvan. Does he begin reciting ve’sein tal umatar while in chutz la’aretz, does he wait until he returns to Eretz Yisroel, or does he follow the practice of those who live in chutz la’aretz?

According to Opinions # 1 and #2, he should follow the practice of those living in Eretz Yisroel, but for different reasons. According to Opinion #1, the reason is because he knows that he will return to Eretz Yisroel during the rainy season and therefore follows the practice there. According to Opinion #2, since he left Eretz Yisroel for less than a year he is considered an Eretz Yisroel resident.

Although it would seem that the Birkei Yosef (Opinion #3) would hold that he should not recite ve’sein tal umatar until the bnei chutz la’aretz do, it is not absolutely clear that he would disagree with the other poskim in this case. One could explain that he ruled only that one follows the bnei chutz la’aretz if he is there for an extended trip, but not if he is there for only a few weeks that happen to coincide with the Seventh of MarCheshvan. For this reason, when someone recently asked me this shaylah, I ruled that he should follow the practice of those dwelling in Eretz Yisroel. Subsequently, I found this exact shaylah in Shu”t Tzitz Eliezer (6:38), and was very happy to find that he ruled the same way I had. (However, Halichos Shelomoh 8:19 rules that he should recite ve’sein tal umatar in Shma Koleinu and not in Boreich Aleinu.)

CONCLUSION

Rashi (Breishis 2:5) points out that until Adam HaRishon appeared, there was no rain in the world. Rain fell and grasses sprouted only after Adam was created, understood that rain was necessary for the world and prayed to Hashem for rain.  Whenever we pray for rain, we must remember that the essence of prayer is drawing ourselves closer to Hashem.

 

Aliyah Laregel

This website contains many articles on a wide range of Yom Tov related topics that can be found under the headings Sukkah, Esrog, Yom Tov, Hallel, Chol Hamoed, Eruv Tavshillin. The enclosed article discusses a different aspect of Yom Tov observance, that of…

Aliyah Laregel

Question #1: Yizkor on Simchas Torah?

“Is there a reason why Yizkor is recited in Eretz Yisroel in the middle of the Simchas Torah davening?”

Question #2: No Aliyah Laregel

“Someone once told me that when the Beis Hamikdash is rebuilt, the mitzvah of Aliyah Laregel will be optional. How can that be?”

Question #3: Women and Yaaleh Veyavo

“If a woman forgot Yaaleh Veyavo in bensching of Yom Tov, does she repeat the bensching?”

Introduction:

Although we cannot observe the beautiful mitzvah of Aliyah Laregel until the Beis Hamikdash is rebuilt, many halachic observances and customs result from the laws associated with this mitzvah. The questions above reflect some of those practices.

The mitzvah of Aliyah Laregel

The mitzvah of Aliyah Laregel is mentioned several places in the Torah. In parshas Ki Sissa (Shemos 34:23), the Torah states: Shalosh pe’amim bashanah yeira’eh kol zechurcha es penei Ha’adon Hashem, Elokei Yisroel, “Three times a year shall all your males appear in the Presence of the Lord, Hashem, the G-d of Israel,” and a similar posuk appears in parshas Mishpatim (Shemos 23:17). In parshas Re’eih (Devorim 16:16), the Torah specifies that the three times are Pesach, Shavuos, and Sukkos. In this last place, the Torah concludes with the following statement: “Three times a year, all your males shall appear before Hashem, your G-d, in the place that He will choose, and you should not appear before Hashem empty-handed. Each man should bring with him according to the bounty that Hashem your G-d has provided you.”

This last verse teaches that the mitzvah is not only to ascend to Yerushalayim and to the Har Habayis (the “Temple Mount”), but also to bring korbanos when we come. It also states that a wealthier individual is obligated to spend more on his korbanos than a pauper (Mishnah, Chagigah 8b).

Three mitzvos

When the Tosefta (Chagigah 1:5) and the Gemara (Chagigah 6b) discuss the details of Aliyah Laregel, they refer to it as three mitzvos: “The Jewish people were commanded three mitzvos when they were oleh regel,” that is, traveling to the Beis Hamikdash grounds on Yom Tov required three specific mitzvah actions:

  1. From the words of the above-quoted posuk, “You should not appear before Hashem emptyhanded,” we derive that one is required to offer a korban olah when we appear in the Beis Hamikdash, called an olas re’iyah. This korban is completely consumed on the mizbeiach, except for its hide, which is given to the kohanim as one of the gifts that the Torah provides.
  2. The mitzvah of offering special korbanos shelamim in honor of the festival, called Chagigah or shalmei chagigah. Some of the meat of this korban goes to the kohanim, but most of it goes to the owners who serve it as part of their Yom Tov meals while in Yerushalayim. Any tahor Jewish person is permitted to eat from this korban.
  3. The mitzvah of simcha, which includes offering korbanos and eating their meat on each day of the festival, including chol hamoed. Since meat of korbanos may be eaten only in Yerushalayim, this means that, at the time of the Beis Hamikdash, the entire Jewish people spent the whole Yom Tov, including all the days of chol hamoed, in Yerushalayim.

One fulfills this latter mitzvah with any animal korban from which one is permitted to eat, including other korbanos that one must offer anyway (Mishnah, Chagigah 7b). In other words, one may wait to bring his other required korbanos, such as firstborn animals, maaser beheimah, donated shelamim offerings, and chata’os until Yom Tov, and offer them then, while one is in Yerushalayim anyway. When he offers them on Yom Tov, he may fulfill the requirement of consuming shalmei simcha with the meat of these korbanos. (In the case of chata’os and similar korbanos, this approach can be used only by kohanim, since no one else is permitted to consume them.)

Rules of Har Habayis

One is required to be completely tahor when ascending the Har Habayis and to do so with complete awe of the sanctity of the place, and to act appropriately. Among the specific laws that apply on Har Habayis is a prohibition against wearing shoes and of carrying one’s wallet or money belt.

Exempt from Aliyah Laregel

Notwithstanding the words of the Torah that all the males should ascend the Har Habayis three times a year, Chazal derive that there is a long list of men who are exempt from fulfilling the mitzvos of re’iyah. This list includes:

  1. Difficulty in walking

Anyone who has difficulty walking is exempt from the mitzvah of Aliyah Laregel. This includes the elderly, the ill, someone with a lameness or injury in his legs, and even those who are unused to walking without shoes, since one is prohibited from wearing shoes on the Har Habayis (Chagigah 4a). Someone who can walk there only because he uses a prosthesis is also exempt from the mitzvah (Chagigah 3a; 4a). Similarly, someone who has discomfort in one leg, even if he has no discomfort in the other leg and can still walk, is also exempt (Chagigah 3a).

  1. Vision impaired

Anyone whose vision is impaired is exempt from the mitzvah. This includes someone who can see out of only one eye (Chagigah 4b).

  1. Hearing impaired

Someone who cannot hear, but can speak, or someone who can speak but not hear is exempt from the mitzvah of re’iyah, although they are obligated in simcha and indeed all other mitzvos of the Torah (Chagigah 2b). Also, someone who does not hear in one ear is exempt from re’iyah (Chagigah 3a).

All three of these categories of people who are exempt from the mitzvah of Aliyah Laregel and of offering the olas re’iyah and the shalmei chagigah are still obligated in the third mitzvah mentioned above, of partaking in korbanos simcha (Rambam, Hilchos Chagigah 2:4, based on Gemara Chagigah 4a). This is, of course, assuming that they went to Yerushalayim for Yom Tov, because one may eat these korbanos only there.

  1. Tamei

People who are tamei are exempt from fulfilling the mitzvah of Aliyah Laregel (Gemara Chagigah 4b; Tosefta Chagigah 1:1). Someone who is tamei is required to make himself tahor in order to fulfill the mitzvah of Aliyah Laregel. However, if he did not purify himself or was unable to do so, he is now exempt from the mitzvah, since as long as he is tamei he may not enter the Beis Hamikdash grounds. Indeed, someone who is tamei cannot fulfill the mitzvah of Aliyah Laregel, since he is not allowed to enter the Beis Hamikdash grounds (Rambam, Hilchos Chagigah 2:1).

There is a major difference between the various categories of exemptions from Aliyah Laregel. People excused from the mitzvah for medical reasons may perform the mitzvah, and if they do so, they will be rewarded as einam metzuvim ve’osim, those who perform a mitzvah that they are not obligated to perform. However, someone who is tamei is forbidden to participate in Aliyah Laregel, since doing so would cause him to violate the sanctity of the Beis Hamikdash. He should try to make himself tahor as soon as possible.

  1. Uncircumcised

There are specific situations in which someone is not obligated to have a bris milah performed, because of the danger that is involved. Although such a person is exempt from the mitzvah of bris milah, he is still not circumcised, and, as such, he is exempt from several of the Torah’s mitzvos, including the mitzvah of Aliyah Laregel. Similar to the person who is tamei, this individual is forbidden to observe the mitzvah.

Children

Although a child is not required to observe any mitzvah, Chazal required the father to see to it that he observe most mitzvos, in order to acquaint himself with keeping them. In this context, we find a dispute between Beis Shammai and Beis Hillel. Both schools hold that a father is required to have his minor son accompany him on the mitzvah of entering the Beis Hamikdash on Yom Tov. The question is: From what age is the father obligated to do so? According to Beis Shammai, the father is obligated to do so from when the child is old enough to ride his father’s shoulders, when the father walks from Yerushalayim to the Har Habayis.

We should be aware that the responsibility of a father to train his child to perform a mitzvah is only when the child will be obligated to fulfill that mitzvah when he becomes an adult. Thus, regarding the mitzvah of Aliyah Laregel, should the child fit any of categories 1-3 above that exempt an adult from this mitzvah, the father is not obligated to bring the child with him when he is oleh regel (Rambam, Hilchos Chagigah 2:3).

Smelly professions

There are certain professions that leave their artisans with a malodorous odor. Tanners and copper smelters, for example, are surrounded by substances whose ill fragrance sometimes permeates their clothing and hair. Are they obligated in the mitzvah of Aliyah Laregel, or do we say that since their attendance might adversely affect other people required to observe the mitzvah that they are exempt? This question is discussed by the Gemara (Chagigah 4a). The Rambam (Hilchos Chagigah 2:2) concludes that they are required to clean themselves and their clothes fully and fulfill the mitzvah of Aliyah Laregel.

Yizkor and Aliyah Laregel

I mentioned previously the posuk from parshas Re’eih (Devorim 16:16), in which the Torah specifies that each person is obligated to donate according to the bounty that Hashem has provided him. At this point, I want to address one of our opening questions:

“Is there a reason why Yizkor is recited in Eretz Yisroel in the middle of the Simchas Torah davening?”

To answer this question, we need to explore the history of this prayer. Yizkor is a custom that began among Ashkenazim in chutz la’aretz and is recited four times a year: on Yom Kippur, the eighth day of Pesach, the second day of Shavuos and on Shemini Atzeres. Why specifically on these four days?

On all of these days, there was a custom to make donations to tzedakah, and, at one point, there became established an idea of reciting a prayer that the tzedakah donated should serve for the benefit of one’s departed parents and other relatives. On Yom Kippur, it is obvious why special donations were made to tzedakah, but why specifically on the three days of Yom Tov mentioned above, as opposed to the other days of Yom Tov?

The answer is that in chutz la’aretz, the reading for these three yomim tovim — the eighth day of Pesach, the second day of Shavuos and Shemini Atzeres — is in parshas Re’eih, and the last posuk of the reading states: “Each man should bring with him according to the bounty that Hashem your G-d has provided you.” Although the literal meaning of the posuk refers to the amount one should spend on the korban olas re’iyah, it certainly can be understood to include gifts for tzedakah, and indeed that became an accepted practice. The people made donations to tzedakah, but decided to have them as an iluy neshamah, an elevation for the souls of their departed relatives. (By the way, in some German communities, there was no minhag of Yizkor and instead, they observed a different practice on those days, called matanas yad.)

When the Ashkenazim began returning to Eretz Yisroel in the nineteenth century, they realized that in Eretz Yisroel, there is no eighth day of Pesach or second day of Shavuos, and the day that is called Shemini Atzeres in chutz la’aretz is called and observed as Simchas Torah, when we read parshas Vezos Haberacha and the beginning of Bereishis. Thus, parshas Re’eih is never read on Yom Tov.

Because people did not want to lose this beautiful minhag of reciting Yizkor, they continued to observe the practice on the day of Yom Tov closest to those days, that is, on the seventh day of Pesach, Shavuos, and on Simchas Torah.

Beloved servants

We have discussed some of the laws of the mitzvah of Aliyah Laregel, a topic that we will continue to discuss in a future article, when we will iy”H answer the remaining of our opening questions. Contemplating this special mitzvah of Aliyah Laregel should give every one of us chizuk. Consider that Hashem Yisborach commanded us to come to the Beis Hamikdash “in order to be seen.” The message here is that we are His beloved servants and He desires to see us, as it says in the Gemara (Chagigah 4b), “A servant whom his master desires to see.” Furthermore, the Gemara describes Klal Yisroel as “the servant whom the master desires to eat at his table.”

May we soon merit fulfilling this mitzvah in the third Beis Hamikdash, may it be rebuilt speedily, and that Hashem should look upon us favorably! Wishing all of our readers, together with all of Klal Yisroel, a good Yom Tov!

 

The Borders: How Much is Ours?

Question #1: Exotic Island Fruit

jaffa-israel“According to my grocer, this fruit grew on an island in the Mediterranean that is directly west of Israel. Is it prohibited because of orlah?”

Question #2: The Golan

Is the Golan part of Biblical Eretz Yisroel?

Question #3: Cairo

“Is Cairo in Israel?”

Answer:

To answer these questions, we need to clarify what are the areas and boundaries of Eretz Yisroel. Many of the laws concerning the mitzvos hateluyos ba’aretz, the agricultural mitzvos, as well as some other halachos are affected by the sanctity of Eretz Yisroel, so it behooves us to know exactly which areas are holy and which are not. As we will soon learn, researching this topic requires not only a thorough knowledge of the Gemara passages involved, but also knowledge of Tanach, geography, topography and history. We will begin with some basic study of the relevant Chumash.

Introduction

In several places in Chumash, the borders of the Promised Land are mentioned, including:

  1. Avraham Avinu is promised that his descendants will receive the land from the “River of Egypt” to the “great river, the Euphrates” (Bereishis 15:18).
  2. In Parshas Mishpatim (Shemos 23:31), the Torah tells us, I will set your boundaries from the Red Sea until the Sea of the Philistines and from the desert until the river.
  3. There is a very detailed description of the borders of the Promised Land in Parshas Masei, which we will discuss shortly.
  4. At the beginning of Parshas Devorim, the Torah describes the different areas of Eretz Yisroel: Travel for yourselves along the mountains of the Emori and its neighboring areas, in the Aravah, in the mountains, in the lowlands, in the Negev, along the seashore; the land of the Canaanites and Lebanon, until the great river, the Euphrates (Devorim 1:7).
  5. There is another brief description at the very end of Parshas Eikev, where it says: Every place upon which the sole of your foot will tread will be yours: from the desert and Lebanon, from the Euphrates River until the far sea will be your border.

In addition to these descriptions in the Torah, there are also references in Nach, notably in the books of Yehoshua (1:4; and the entire chapter 15) and Yechezkel (Chapter 47:15-22).

History

As I mentioned above, history actually affects, in a significant way, whether a particular area has kedushas Eretz Yisroel. Min hatorah, after the destruction of the first Beis Hamikdash by the Babylonians, the mitzvos hateluyos ba’aretz apply only to land that was part of the area settled by the Jews when they returned to Eretz Yisroel to build the second Beis Hamikdash in the days of Ezra. In other words, these laws no longer apply Min hatorah in the areas settled by Yehoshua, unless they were also part of the later Jewish settlement, referred to as the second Jewish commonwealth (Shevi’is 6:1).

The Gemara teaches that areas that were conquered at the time of Yehoshua lost their sanctity when the Jews were exiled by the Babylonians. The Rambam (Hilchos Terumos 1:5) explains that since these lands were obtained via conquest, subsequent invasion and defeat of the Jewish nation caused the sanctity to lapse.

However, those areas that became obligated in mitzvos in the days of Ezra retained their sanctity, even after the Roman conquest and destruction of the Beis Hamikdash, notwithstanding that the Jews had again lost sovereignty over the Holyland.

Shevi’is

Regarding the laws of shevi’is, those areas conquered by Yehoshua but not settled in the days of Ezra may not be worked during shemittah year; but, Chazal were more lenient regarding some of the other applicable laws (Shevi’is 6:1).

Transjordan, the territory east of the Jordan River known in halachah as eiver hayarden, is not part of the Promised Land, yet it is usually included under the mitzvos hateluyos ba’aretz. We have the anomalous situation in which an area that was not promised to us is sanctified with kedushas ha’aretz, whereas much of the area promised to us is not.

Thus, when defining which areas are included under the mitzvos hateluyos ba’aretz, we take into consideration several factors:

Where is this land? Is it part of the Promised Land?

Is this part of the land that Moshe conquered?

Is this part of the land that Yehoshua conquered?

Is it within the area settled in the days of Ezra?

This week’s parshah

Let us now examine the most detailed of the descriptions provided by the Torah, the one in Parshas Masei.

This is the land that will fall to you as your possession – the Land of Canaan, according to its borders. And the southern edge begins from the Desert of Tzin near Edom. The easternmost point of your southern border shall be the edge of the Dead Sea. Then the border will turn southward to the Heights of Akrabim and then pass to Tzin, from where it will extend southward to Kadeish Barnea. It will then turn to Chazar Adar and pass to Atzmon. The border will then turn from Atzmon to the Stream of Egypt and extend towards the sea.

The western border will be the Great Sea and its “gevul,” its territory; that will be for you the western border.

And this will be your northern border: From the Great Sea, you should turn to Mount Hor. From Mount Hor, you should turn as you were going to Chamos, and the border extends then to Tzedad. The border then turns to Zifron and extends to Chatzar Einan; this will be for you the northern border.

And demarcate for yourselves the eastern border from Chatzar Einan to Shefam. The border will then run down from Shefam in the direction of Rivlah to the east of Ayin. The border will then run down and extend to the eastern shoulder of the Kineret Sea. From there, the border will run down the Jordan and extend to the Dead Sea. This will be for you the land with all its borders all around (Bamidbar 34:2-12).

There is a vast literature attempting to identify the various place names mentioned here, which includes explaining the distinction in nuance among the different terms (“run down,” “extend,” “going to,” “turn,” etc.), and attempting to correlate this description with the boundaries of Eretz Yisroel as they are mentioned in other places in Tanach. It is well beyond the scope of this article to provide an exhaustive study of all the works written on the subject. We should note that many great historical figures who were talmidei chachamim have endeavored to identify the borders of Eretz Yisroel and the descriptions of the pesukim, and that the discussion continues in the contemporary world. For the purpose of this article, we will be content with a few relatively sparce observations.

The southern border

In Parshas Masei, the Torah describes the easternmost point of the southern border to be the Dead Sea and its westernmost point to be the Stream of Egypt. Note that Avraham Avinu was promised from the River (in Hebrew, nahar) of Egypt, whereas in Parshas Masei, we are promised from the Stream (in Hebrew, nachal) of Egypt. Are these the same body of water? If they are not, what was Avraham promised, and why did we not receive it?

According to most interpretations, they are not the same — the Stream of Egypt is the Wadi El Arish in the northern part of the Sinai Desert, whereas the River of Egypt is the Nile. According to this approach, Avraham Avinu was promised that one day in the future, his descendants would have much more extensive holdings to the south and southwest than they have ever controlled in history, even after Ariel Sharon crossed the Suez Canal, thereby capturing the Egyptian Third Army to end the Yom Kippur war. As Rashi explains, Avraham Avinu was promised the land of ten nations, including Keini, Kenizi and Kadmoni, which Rashi equates with Edom, Moav and Amon, but these are not the borders the Bnei Yisrael will or did possess upon entering the Land in the days of Yehoshua. The Malbim (in his commentary to Bamidbar 34) explains that the borders promised at the end of Parshas Eikev (Devorim 11:24) also reflect a promise in our distant future, when the Jewish people will acquire much more territory than what was possessed in the days of Yehoshua. According to this approach, no part of Egypt is yet part of Eretz Yisroel.

The Ramban (Devorim 11:24), however, explains this verse differently, understanding that the borders of Parshas Eikev describe the area that we are commanded to conquer. This is consistent with his opinion that one of the taryag mitzvos requires that we conquer Eretz Yisroel, a topic that we will leave for a different time.

A river or a stream?

On the other hand, some major commentaries interpret the Stream of Egypt of Parshas Masei to be the Nile, not the Wadi el Arish, making the Eretz Yisroel promised to Yehoshua far more expansive in the south and southwest. Since Cairo is on the eastern bank of the Nile, this approach considers Cairo to be located in Eretz Yisroel! Thus, the third of our opening questions “Is Cairo in Israel?” is actually a serious question, and technically is the subject of a dispute among halachic authorities.

We will return to our discussion of the southern border; but first, let us complete our reading of the other three borders.

The western border

In Parshas Masei, the Torah describes the western border of Eretz Yisroel:

The western border will be the Great Sea, and its territory [“ugevul”]; that will be for you the western border. (I have followed the translation of Rav Hirsch that the word gevul means its territory.) According to the Gemara (Gittin 8a), the word ugevul teaches that there are islands in the Mediterranean that are halachically considered part of Eretz Yisroel. There, the Gemara quotes a dispute between tanna’im regarding which islands located in the Mediterranean, the “Great Sea” of the pasuk, are halachically part of Eretz Yisroel and which are not. Rabbi Yehudah contends that the word ugevul means that any island in the Mediterranean that is directly west of Eretz Yisroel is imbued with the sanctity of the Holyland, whereas the Rabbonon’s understanding includes a more limited area. They draw an imaginary line from the northwesternmost point of Eretz Yisroel to its southwesternmost point and include only islands that are east of this imaginary line. In practice, there are very few islands in this small corridor of the eastern Mediterranean that are directly west of Eretz Yisroel.

Orlah in chutz la’aretz

Although the mitzvah of orlah, the prohibition of benefiting from fruit grown on a tree during its first three years, applies to fruit grown outside of Eretz Yisroel, its law is far stricter on produce that grows in Eretz Yisroel. In Eretz Yisroel, one may not use a fruit without first determining that the fruit is very unlikely to be orlah. In chutz la’aretz, the fruit is prohibited only when one is certain that it is orlah.

Islands in the Mediterranean

This allows us to discuss the first of our opening questions: “According to my grocer, this fruit grew on an island in the Mediterranean that is directly west of Israel. Is it prohibited because of orlah?”

We now know that if this island is imbued with the sanctity of Eretz Yisroel, then we may not use the fruit unless we are fairly certain that it is not orlah. However, if the island is outside Eretz Yisroel we may consume the fruit, as long as we are uncertain that it is orlah. According to Rabbi Yehudah, any Mediterranean island directly west of Eretz Yisroel is imbued with the sanctity of the Holyland, and fruit grown on this island needs to be treated with the same stringency as fruit growing on the mainland. According to the Rabbonon, which is the normative halachah, only islands that are very near Eretz Yisroel are halachically part of the Holyland, because they are east of the “line” that runs from the northwest corner of Eretz Yisroel to its southwest corner. Since there are very few islands in this small corridor of the eastern Mediterranean, from a practical perspective, one may assume that the fruit in the grocery does not have kedushas Eretz Yisroel.

The northern border

Parshas Masei’s description of the northern border begins at the Mediterranean (The Great Sea) at Mount Hor and then passes through Chamos, Tzedad, Zifron and Chatzar Einan. There are widely variant opinions as to where these places are. Some contend that Mount Hor is as far north as southern Turkey, others placing it north of Latakia, in contemporary Syria, whereas others peg it much further south, not far from Beirut. All opinions have it considerably further north than any of the borders of the contemporary State of Israel.

The eastern border

Parshas Masei’s description of the eastern border has it beginning in the north at Chatzar Einan and then running through Shefam, Rivlah, east of Ayin to the eastern shoulder of the Kineret, down the Jordan River and into the Dead Sea. We should note that, according to most, if not all, opinions, the northeastern area of Eretz Yisroel extends much further east than the Jordan. According to all of the Torah’s descriptions, the Jordan is the eastern border of the central plain of Eretz Yisroel. Thus, the area northeast of the central plain, what we call today the area of the Golan and further north, is much wider than the central part of Eretz Yisroel, which extends only until the Jordan.

In addition, Transjordan, or the area east of the Jordan River, which had previously been controlled by Sichon and Og, came under Jewish rule as the eiver hayarden prior to the entry into Eretz Yisroel proper, notwithstanding the fact that it was not part of the Promised Land. This was the area settled by the tribes of Reuven, Gad and half of Menashe.

Difficult passage

At this point, let us examine a very difficult, albeit brief, passage of the Torah. The Torah, in Parshas Mishpatim, describes the borders of Eretz Yisroel as extending from the Yam Suf until the Sea of the Philistines and from the desert until the river? There are several questions here: First, when did Eretz Yisroel ever extend to the Red Sea (the Yam Suf), which is in Egypt? Certainly, at the time of the Exodus from Egypt, the Bnei Yisroel, did not immediately arrive in the Promised Land when they crossed the Yam Suf! (However, see Tosafos, Arachin 15a s.v. Kesheim.)

Second, the Mediterranean, which is the Sea of the Philistines, is the western border of Eretz Yisroel. How then could Eretz Yisroel be described as stretching from the Yam Suf, on its west, to the Mediterranean, also to its west?

The Rashbam explains that the Torah means that the Yam Suf is the eastern border of Eretz Yisroel and that from the Yam Suf until the Sea of the Philistines means from east to west. This follows the approach of the Rashbam’s grandfather, Rashi (Shemos 10:19), who explains the Torah to mean from the Yam Suf on the east, meaning, presumably, from the Gulf of Eilat (also called the Gulf of Aqaba), which is an inlet of the Red Sea, to the Mediterranean Sea on the west. According to this approach, from the desert until the river means from the desert on the south to the Euphrates on the north. A result of this calculation is that the entire Negev is within the southern borders of Eretz Yisroel.

The Netziv rejects the approach of Rashi and the Rashbam. The obvious reason for his criticism is that the Gulf of Eilat is not, by far, the easternmost point of Eretz Yisroel, so why would this be used as a promise of the expansion of the land? The Netziv contends that the Yam Suf, the Red Sea, is meant to be the southern border, and that from the Yam Suf until the Sea of the Philistines means from south to west, notwithstanding, as he notes, the fact that one usually describes an expanse from opposite sides; here, it is not the case. The Netziv, therefore, explains that from the desert until the river refers not to the desert of the southern border of Eretz Yisroel, but the eastern border. This means that the border referred to is neither the Sinai desert nor the Negev, but the Jordanian desert, and it is including Transjordan, after it was conquered from Sichon and Og.

Conclusion

Many generations had to be content with reading about Eretz Yisroel and imagining what the descriptions of its borders mean. We are fortunate to live in a time when visiting and even living in Eretz Yisroel is a reality. We should be filled with hakoras hatov that we can traverse the land that was promised to our forefathers. Inhabiting our native land reminds us that it is a land of elevated kedushah, and therefore requires special laws that apply within the halachic borders of this special land. Furthermore, living in Eretz Yisroel provides us with a direct relationship to Hashem, for which we should all strive.

 

Sifting the Makom HaMikdash

Now that the “Three Weeks” has begun, I am sharing with you my reflections on an appropriate halachic topic.

Sifting the Makom HaMikdash

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Recently, someone asked me a shaylah that involves what is probably one of the most heart-breaking issues I was ever asked. The question was: “Are there any halachic issues involved in sifting through the earth removed by the Waqf from the Makom HaMikdash?”

To explain this shaylah, I will first explain what has happened, then discuss the halachic issues involved — and finally explain the answers. There is also a fascinating halachic-architectural issue that I noticed while studying photographs of the Moslem construction, which I will discuss at the end of this article.

During the past many years, the Waqf, the Moslem “Trust” that controls the holiest place on earth, the Har HaBayis, has been making major “renovations” there, including the construction of yet another mosque – this one located near the Shaarei Chuldah, which is the southern entrance to Har HaBayis. These gates are called Shaarei Chuldah because Chuldah the Prophetess stood between these two gates and admonished the Jews to do teshuvah.

For clarification purposes: The Kosel HaMaaravi where we daven is part of the Western Wall of the Har HaBayis, known in English as “the Temple Mount,” which is the top of the mountain called Har HaMoriah. The Beis HaMikdash included open courtyards as well as the structure that stood on the Har HaBayis, but occupied only a small area of the mountain. Although the Har HaBayis has much more kedusha than that of Yerushalayim, the Beis HaMikdash has much greater kedusha than that of the Har HaBayis. Someone entering the area where the Beis HaMikdash once stood is chayov kareis, an extremely severe punishment.[i] The Mishnah (Keilim 1:8-9) lists seven levels of kedusha above that of Yerushalayim — the highest being that of the Holy of Holies, the Kodesh HaKodashim area of the Beis HaMikdash, that only the kohen gadol may enter, and then, only to perform the service on Yom Kippur.

As we said, the Har HaBayis has far less sanctity than the Beis HaMikdash. Nevertheless, most contemporary poskim prohibit ascending the Har HaBayis. A minority of poskim permit entering areas of the Har HaBayis that are not part of the Beis HaMikdash in order to daven or perform a mitzvah, but only after one has performed certain taharah procedures, including washing one’s self thoroughly, making certain that one has no chatzitzos (interrupting substances on one’s body), and immerses oneself in a mikveh. All agree that it is prohibited to enter any part of the Har HaBayis if one is tamei with what halacha calls tumah hayotzei migufo, which includes people who are baalei keri, zav, zavah, niddah and yoledes.

The Moslem construction

The Moslem construction is without any permits and is illegal. However, the Israeli authorities refuse to interfere, citing concerns about violence! One of the Waqf’s goals is to obliterate any remnants of the Batei HaMikdash from the Har HaBayis so that they can persist with their lies that Jews never lived in Israel, and that the Batei HaMikdash never existed. The Waqf has removed hundreds of truckloads of “debris” from the Har HaBayis, which they dump in the Kidron Valley and other sites around Yerushalayim.

With the help of volunteers, Israeli archeologists are painstakingly sifting through the rubble removed from the Har HaBayis, to look for artifacts. (Thus, there is no halachic concern of ascending to the Har HaBayis.) Someone asked me whether he can volunteer for this work, citing the following potential shaylos:

  1. Is there a halachic concern that in the unearthing of these items someone is receiving personal benefit from property of the Beis HaMikdash, thus violating the severe Torah prohibition called me’ilah.
  2. Since we are all tamei, is there concern that one might be rendering impure (i.e., making tamei) property or the stones of the Beis HaMikdash?
  3. What are we required to do with stones or earth that were originally part of the Beis HaMikdash or the Har HaBayis?
  4. The remnants being unearthed include bone fragments, some of them human. This leads to two specific questions: (a) May a kohen work in this project? (b) Is there a halachic concern of mistreating the dead, since these human remains will not be buried afterwards, but will be stored and used for scientific research and study?
  5. Some artifacts that surface are clearly from what were once idols. Is there a halachic requirement to destroy them? Is it the finder’s responsibility to destroy them, something which the archeologists do not permit?

The archeological finds

Now some background on what the search is revealing, so that we can explain the halachic issues raised. Everything found on the Har HaBayis has a dark gray-ash color, rather than the typical white limestone color of Yerushalayim earth. This is because the fires of the destructions that transpired discolored the Har HaBayis earth.

Every bucketful of sifted earth contains numerous historical items, including coins, pottery and glass fragments,  arrowheads and other primitive weapons and pieces of human or animal bone. Coins unearthed date from as early as the second Beis HaMikdash to as late as the period of Napoleon III (mid-nineteenth century). The pieces of animal bone are presumably from what people ate there – possibly, leftovers from korbanos, but also leftovers of non-Jewish meals of the last centuries.

Other remnants unearthed are connected with the churban, such as Babylonian and Roman arrowheads, and Roman catapult projectiles, all sad reminders of the Jews who died there during the two churbanos.

Probably a greater reminder of the churban is the general attitude of the Moslems, who, in effect, rule over the Har HaBayis today. One would think that the Moslems would treat the Har HaBayis with some level of sanctity, since they claim that it is one of their holy sites. Unfortunately, this is not true. The workers loiter and smoke there, and children play soccer. Their chief concern seems to be that Jews not pray there.

We can now begin to answer the questions raised above:

Beis HaMikdash property

Question #1: Is there a halachic concern that in the unearthing of these items someone is receiving personal benefit from property of the Beis HaMikdash thus violating the severe Torah prohibition called me’ilah.

Much broken pottery has been found among the artifacts. These items are of great archeological curiosity because they indicate who used the Har HaBayis and ate their meals there over the millennia. Halachically, we know that kohanim ate meat of the holier korbanos only in the Beis HaMikdash area. After cooking these korbanos, the halacha required that the earthenware pots used be broken in a holy area of the Beis HaMikdash.[ii] The shards discovered may indeed be remnants of these vessels. However, these earthenware pieces have no sanctity, since all holy vessels were manufactured from metal only.

Remnants of holy vessels

Many types of holy vessels, such as bowls, baking dishes, forks, and numerous other items were used in the service in the Beis HaMikdash. What is the halacha if someone found a usable metal item that might be one of the holy vessels of the Beis HaMikdash, or something that might be a remnant from the mizbayach (the altar)? Is there a prohibition of me’ilah in using these items?

Because of complicated halachic issues, the poskim dispute whether one would violate me’ilah in such a case. Allow me to explain. Based on a pasuk in Yechezkel,[iii] the Gemara presents us with a halachic concept referred to as “ba’u peritzim vichilaluhu” – when the lawless entered, they removed its sanctity, meaning that under certain circumstances, misuse of Beis HaMikdash vessels defiles them and removes their kedusha.[iv] The Rishonim dispute when this concept applies. The Baal HaMaor explains that when the Hellenized Jews used the mizbayach of the Beis HaMikdash inappropriately (during the events prior to the Chanukah story), this defiling removed the sanctity from the stones of the mizbayach. In his opinion, the other vessels of the Beis HaMikdash still maintain their sanctity, and, furthermore, only Jews can cause the kedusha to be removed, not gentiles. Thus, according to the Baal HaMaor, someone who uses a vessel of the Beis HaMikdash today violates the severe prohibition of me’ilah. The Ramban disagrees with the Baal HaMaor, explaining that when the gentiles entered the Beis HaMikdash to destroy it, they profaned the sanctity of the building and its vessels. In his opinion, someone who subsequently made use of these vessels for his own personal purposes would not violate any prohibition of me’ilah. As a result of this dispute, one should not use a metal utensil found in the Har HaBayis ruins, because of the possibility of committing me’ilah, based on the Baal HaMaor’s stricter opinion.

Question #2: Since we are all tamei, is there concern that one might be profaning (i.e., making tamei) property or the stones of the Beis HaMikdash?

I could find no halachic literature directly discussing this shaylah. There is a prohibition of making something tamei in the Beis HaMikdash.[v] However, I am unaware of any halachic source that prohibits making these items tamei once they have been removed from the Beis HaMikdash grounds. Furthermore, stones themselves do not become tamei.

Question #3: What are we required to do with stones or earth that were originally part of the Beis HaMikdash or the Har HaBayis?

Destroying the Beis HaMikdash (chas veshalom)

To destroy any part of the Beis HaMikdash violates a Torah prohibition.[vi] This includes removing a stone from the mizbayach or from any other part of the Beis HaMikdash with the intent of destroying it.[vii] To destroy items that belong to the Beis HaMikdash, even those that are not used for a holy purpose (kodashei bedek habayis), or to intentionally destroy part of the Har HaBayis  is prohibited miderabbanan.[viii]

Is there a responsibility to bury the broken stone from the Beis HaMikdash or from the Har HaBayis?

The halacha is that damaged stone from the Beis HaMikdash or its vessels must be buried, just as we bury worn-out sifrei Torah.[ix] Thus, the halacha requires that stone or other remains from the Beis HaMikdash be respectfully buried. Unfortunately, today, the stone and other remains that have no archeological value are simply abandoned at the worksite.

Does the earth from the Har HaBayis have sanctity?

The Mizbayach Adamah,[x] whose author was the rav of Yerushalayim during part of the eighteenth century, discusses a shaylah whether grapes grown on the Har HaBayis are prohibited because of me’ilah. From his discussion, it is clear that he considers all earth of the Har HaBayis to have kedusha that might create a prohibition of me’ilah. Thus, the same concerns I raised above about the stone remains exist concerning the earth itself, and it must be buried in a respectful way.

Question #4: The remnants unearthed include bone fragments, some of them human. This leads to two specific questions:

(a) May a kohen participate in this project?

(b) Is there a halachic concern of mistreating the dead, since these human remains will not be buried afterwards, but will be stored and used for scientific research and study?

Human bones

The discovery of human bone fragments on the Har HaBayis is puzzling, since Jews would never have buried anyone there. In all likelihood, these are bones of non-Jews that were interred there, or perhaps of Jews who were killed on the Har HaBayis and, unfortunately, not buried according to halacha. Even if we assume that these are bones of non-Jews, a fragment as small as the size of a barleycorn will convey tumah, if moved or touched. Therefore, since there is a reasonable chance that a kohen might touch or lift a human bone fragment, he should refrain from participating in this project.

Burial

Does a non-kohen need to be concerned about the possibility that he will locate bones, and that he now has a mitzvah to bury them?

If one can assume that the bones discovered were from non-Jews, there is no mitzvah to bury them, but only to be certain that they do not render a kohen impure. Even if the bones are from a Jew, it is unclear whether the mitzvah of burying a Jewish meis applies to such a small amount. The Mishneh LaMelech[xi] rules that the mitzvah of kevurah does not apply to part of a corpse, whereas the Tosafos Yom Tov[xii] rules that one is required to bury a piece of a Jewish meis as small as a kezayis. However, it is unclear how small a piece of bone requires kevurah.

Avodah Zarah

Question #5: Some artifacts that surface are clearly from what were once idols. Is there a halachic requirement to destroy them? Is it the finder’s responsibility to destroy them, something which the archeologists do not permit?

Some background to this shaylah: It is prohibited to benefit from an idol; furthermore, there is a Torah mitzvah to destroy idols in a way that no one can ever benefit from them.[xiii] The suggested method is to grind up the idol and scatter the filings to the wind or the sea. One may also not benefit from a broken idol, and the same halachic requirement exists to destroy it.[xiv] Obviously, the archeologists overseeing the work will not allow this halacha to be fulfilled.

Thus, in conclusion, it appears that one unless one found usable metal vessels, one does not need to be concerned about using Beis HaMikdash property while sifting earth removed from the Har HaBayis. It also seems that a non-kohen may participate in these activities if he can have control over the items that he finds and can destroy the idols and bury the human bones and any remains from the Beis HaMikdash that he may find. However, he may not participate as a member of a “dig team,” where he is forced to follow the instructions of an archeologist who is not following halachic guidelines.

A halacha background

From photographs I have seen of the new mosque, it appears that the Waqf did very little actual construction, but simply hollowed out one of the underground archways as it was originally constructed when the Beis HaMikdash was built. Explaining this underground construction is, in itself, a fascinating halachic subject.

Underground archways

Someone who stands above a buried corpse or part of a corpse becomes tamei (with the exception of the case I will describe below). When the Beis HaMikdash was built, the building was constructed in a way that it was impossible to become tamei, even if someone was once buried in the earth beneath the Beis HaMikdash, itself an almost impossible scenario. In order to eliminate the possibility of someone becoming tamei from such a corpse, the Har HaBayis was constructed with “archways on top of archways.”[xv]

To explain this construction, I will elucidate how tumas ohel works. If there is tumas meis under a building, tumah spreads throughout the building, but does not spread above the building. Therefore, someone walking on the roof of the building remains tahor, even though he walked directly above the meis.

Similarly, if one constructs an archway, and there is tumah under the roof of the archway, the tumah spreads underneath this entire archway, but not above it. This is because an archway is a building –tumah spreads underneath it, but the archway prevents tumah from rising above it.

However, if the meis was buried beneath the pillar of an archway, the tumah is not inside the ohel, but under the pillar – and the tumah rises vertically and contaminates the area directly above it.

The way to prevent this tumah from proceeding upward and rendering people above it tamei is to construct another archway directly above the pillar. This way, although the tumah will rise through the pillar of the lower archway, it will then remain within the ohel of the upper archway and not spread above it.

This is the concept of “archways on top of archways” — where both of the upper archway’s pillars rest on the arch of the lower archway, which effectively blocks tumas ohel from spreading from the ground below to any area above the double archway. If the meis is beneath the arch of the lower archway, the lower archway blocks tumah from rising above it, and if the tumas meis is beneath the pillar of the lower archway and its tumah rises above the lower archway, it will be blocked by the upper archway.

Thus, to avoid any possible tumas meis in the Beis HaMikdash, the entire Har HaBayis was constructed with underground double sets of archways, thereby guaranteeing that no tumas meis could spread upward from a meis below. The Waqf apparently cleared out the debris accumulated under one of these archways, and used it as the roof of their mosque!

Incidentally, this method of making “archways on top of archways” is used to correct the problem of roads discovered to pass over graves or cemeteries. In this instance, very small “archways” are constructed, but this is sufficient, because to accommodate this halachic problem, each section of archway-ohel needs to be only a tefach high.

We all hope and pray that the day will soon come when the Beis HaMikdash returns as the Bayis Shlishi, and we will ascend to the Har HaBayis in purity, sanctity, and joy to serve Hashem by observing all of the mitzvos.

An earlier version of this article was published in From Buffalo Burgers to Monetary Mysteries. If you would like to purchase this book, or From Vanishing Importers to Vultures’ Wings, or any of my Hebrew publications, please contact me by e-mail.

 

 

[i] Kaftor VaFerech, Chapter 6; Kesef Mishneh, Hilchos Beis HaBechirah 6:14; Magen Avraham 561:2; Shu’t Binyan Tziyon #2.

[ii] Zevachim 93b

[iii] 7:22

[iv] Avodah Zarah 52b

[v] Mishnah and Gemara Eruvin 104b; Rambam, Hilchos Bi’as HaMikdash Chapter 3

[vi] Rambam, Hilchos Yesodei HaTorah 6:7

[vii] Rambam ibid.; and Hilchos Beis HaBechirah 1:17

[viii] Shu’t Achiezer, Yoreh Deah #49; Aruch HaShulchan HeAsid 4:24-25; Minchas Chinuch #437

[ix] Tosefta, Megillah 2:10; Rambam, Hilchos Beis HaBechirah 1:15

[x] Cited by Machazik Bracha, addendum to Orach Chayim 151

[xi] End of Hilchos Aveil

[xii] Shabbos 10:5

[xiii] Rambam, Hilchos Avodah Zarah 7:1; Shulchan Aruch, Yoreh Deah 146:14

[xiv] Shulchan Aruch, Yoreh Deah 146:11

[xv] Mishnah, Parah 3:3; Rambam, Hilchos Beis HaBechirah 5:1

Post-Shmittah Awareness for the Eretz Yisroel and Chutz La’Aretz Consumer

If you are in Eretz Yisroel, you should be receiving this article on Parshas Behar. If you are in chutz la’aretz, you are receiving it the same week, but a parshah earlier.

 

How can we pass Parshas Behar immediately following a shmittah year without discussing the laws of shmittah? Yet many chutz la’aretz residents see no need to learn these laws, assuming that locally available produce is never affected.

Well — guess again. Although, according to the halacha, one may not export shmittah produce outside Israel (Mishnah Shvi’is 6:5), much produce finds its way there. And, even in chutz la’aretz, we must treat fruit of Eretz Yisroel with kedushas shvi’is, according to all of the laws we will now discuss.

Situation #1: WHAT A ROAST!!

Traditional English Sunday roast with Yorkshire pudding and summer vegetables macro close up isolated on white

When I was a rav in America, a knowledgeable housewife cooked a delectable roast, using wine whose label indicated that it had kedushas shvi’is. Although she had no idea what this term meant, her son pointed out that they needed to ask a shaylah what to do with the roast. To make a long story short, the entire roast had to be treated with kedushas shvi’is; I will soon explain what this means.

Situation #2: WHAT ARE SEFICHIN?

“I noticed a sign in shul that the fruits and vegetables in the local supermarket are from Israel and must be treated appropriately. Someone told me that the vegetables are prohibited because they are sefichin. What does that mean?”

Situation #3: WHAT WOULD YOU RULE?

Several shmittah cycles ago, I was working as a mashgiach for a properly-run American hechsher. One factory that I supervised manufactured breading and muffin mixes. This company was extremely careful about checking its incoming ingredients: George, the receiving clerk who also managed the warehouse, kept a careful list of what products he was to allow into the plant and what kosher symbols were acceptable.

On one visit to the plant, I noticed a problem, due to no fault of the company. For years, the company had been purchasing Israeli produced freeze-dried carrots with a reliable hechsher. The carrots always arrived in bulk boxes with the Israeli hechsher prominently stamped in Hebrew and the word KOSHER prominently displayed in English. George, who always supervised incoming raw materials, proudly showed me through “his warehouse” and noted how he carefully marked the arrival date of each new shipment. I saw crates of the newest shipment of Israeli carrots, from the same manufacturer, and the same prominently displayed English word KOSHER on the box. However, the Hebrew stamp on the box was from a different supervisory agency, one without the same sterling reputation. The reason for the sudden change in supervisory agency was rather obvious, when I noted that the Hebrew label stated very clearly “Heter Mechirah.”

First, let us discuss the basics:

LAWS OF THE LAND

In this week’s parsha, the Torah (VaYikra 25:1-7) teaches that every seventh year is shmittah; we are prohibited from working the land of Eretz Yisroel and must leave our land fallow (Avodah Zarah 15b). Just as observing the seventh day, Shabbos, demonstrates our belief in the Creator, so too, observing every seventh year as shmittah demonstrates this faith. The landowner must treat whatever grows as ownerless, allowing others to enter his field or orchard to pick and take its produce. The picker may take as much as his family will eat, and the landowner himself also may take this amount (see Rambam, Hil. Shmittah 4:1).

LAWS OF THE FRUIT

Although shmittah observance today is mandated only miderabbanan (see Moed Katan 2b; Chazon Ish, Shvi’is 3:8), nevertheless, most of its laws are the same as they will be when observing shmittah will again become a mitzvah min hatorah. The Torah imbues shmittah produce with special sanctity, called kedushas shvi’is, declaring vihaysa shabbas ha’aretz lochem le’ochlah, “the produce of the shmittah should be used only for food” (VaYikra 25:6). According to accepted opinion, one is not obligated to eat shmittah food – rather, the Torah grants us permission to eat it, and we must treat it accordingly (Chazon Ish, Hil. Shvi’is 14:10). There is much halachic detail involved in correct use of shmittah produce. For example:

  1. One may not sell shmittah produce in a business manner (Rambam, Hil. Shmittah 6:1). Although one may pick shmittah produce for one’s personal consumption, one may not harvest it to sell commercially (Tosefta, Shvi’is 5:7).
  2. One may not export shmittah produce outside Eretz Yisroel (Mishnah Shvi’is 6:5). There are opinions that allow exporting shmittah wine and esrogim; however, the rationales permitting this are beyond the scope of this article (Beis Ridbaz 5:18; Tzitz HaKodesh, Volume 1 #15:4).

III. Shmittah produce is intended for Jewish consumption; you may not give or sell kedushas shvi’is produce to a gentile, although you may allow him to join you for your meal (Rambam, Hil. Shmittah 5:13 and Mahari Korkos ad loc.).

  1. If one trades or sells the shmittah produce, the food or money received in exchange also has kedushas shvi’is (Sukkah 40b). (Because of space constraints, I will leave details of these halachos for another time.)
  2. One may not ruin shmittah produce (Gemara Pesachim 52b).

What types of “ruining” did the Torah prohibit? One may not cook foods that are usually eaten raw, nor may one eat raw produce that is usually cooked (Yerushalmi, Shvi’is 8:2; Rambam, Hil. Shvi’is 5:3). Therefore, one may not eat raw shmittah potatoes, nor may one cook shmittah cucumbers or oranges. Contemporary authorities dispute whether one may add shmittah orange or apricot to a recipe for roast or cake. Even though the roast or cake is delicious because of the added fruit, many poskim prohibit this cooking or baking, since these fruit are usually eaten raw (Shu”t Mishpat Cohen #85). Others permit this, if it is a usual way of eating these fruits (Mishpetei Aretz page 172, footnote 10).

One may feed shmittah produce to animals only if it is not considered fit for human consumption. This includes varieties grown for fodder, as well as peels and seeds that people do not usually eat (Rambam, Hilchos Shmittah 5:5). A neighbor of mine, whose finicky pet turtle prefers to eat lettuce, had a problem what to feed it. Before shmittah he was trying to get it to eat grass, but the turtle preferred lettuce. Oi, is shver tzu zein a turtle!

Similarly, juicing vegetables and most kinds of fruit is considered “ruining” the shmittah produce and prohibited, although one may press grapes, olives and lemons, since the juice and oil of these fruits are considered improvements. Many contemporary authorities permit pressing oranges and grapefruits, provided one treats the remaining pulp with kedushas shvi’is. Even these authorities prohibit juicing most other fruit, such as apples and pears (Minchas Shelomoh, Shvi’is pg. 185).

RUINING VERSUS EATING

How do we determine whether processing a food “ruins” it or not? Many poskim contend that if the processing changes the food’s preferred bracha, one may not perform such processing on shvi’is produce (Shu”t Mishpat Cohen #85, based on Gemara Brachos 38a and Rambam, Hilchos Shvi’is 5:3). Since turning apples to juice reduces their bracha from ha’eitz to shehakol, this would be considered “ruining” the apples. Similarly, the fact that one recites the bracha of shehakol prior to eating a raw potato or cooked cucumbers or oranges demonstrates that treating them this way ruins the produce. According to this approach, one may not press oranges or grapefruits either, since one recites shehakol and not ha’eitz on the juice (Shu”t Mishpat Cohen #85).

Those who permit squeezing oranges and grapefruits apply a different criterion, contending that since this is the most common use of these fruit, it is permitted (Minchas Shelomoh, Shvi’is pg. 185).

One must certainly be careful not to actively destroy shmittah produce. Therefore, one who has excess shvi’is produce may not trash it in the usual way. Similarly, peels that are commonly eaten, such as cucumber or apple, still have shmittah kedusha and may not simply be discarded. Instead, contemporary practice is to place these peels in a plastic bag and then place the bag in a small bin or box called a pach shvi’is, where it remains until the food is inedible. When it decomposes to this extent, one may dispose of the shmittah produce in the regular garbage.

When eating shmittah food, one need not be concerned about the remaining bits stuck to a pot or an adult’s plate that one usually just washes off; one may wash these pots and plates without concern that one is destroying shmittah produce. However, the larger amounts left behind by children, or leftovers that people might save should not be disposed in the garbage, but should be scraped into the shmittah bin.

WHY DECOMPOSE?

This leads us to a question: If indeed one may not throw shmittah produce in the garbage because it has sanctity, why may one do so after the produce decomposes? Does decomposition remove kedusha?

Indeed it does. Kedushas shvi’is means that as long as the food is still edible, one may not make it inedible or use it atypically. This is because shmittah food is meant to be eaten, even though there is no requirement to do so. However, once the shmittah food is inedible, it loses its special status, and may be disposed of as trash.

SANCTITY UNTIL SPOILAGE

This sounds very strange. Where do we find that something holy loses its special status when it becomes inedible?

Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the mitzvos where this principle applies. Other mitzvos where this concept exists are terumah, challah, bikkurim, revai’i and maaser sheini, all cases where, in today’s world, we, unfortunately, cannot consume the produce because we are tamei (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11). Of these types of produce that are holy, but meant to be eaten, only shvi’is may be eaten by someone tamei. Even though someone tamei may not consume tahor terumah, challah, or maaser sheini, in these cases, as well, one may not dispose of or burn them. Instead, one must place them in a secure place until they decay and only then dispose of them (Tur, Yoreh Deah 331). (We burn the special challah portion after separating it only because it has become tamei. If it did not become tamei, we could not destroy the challah portion, but we would place it somewhere until it decays on its own, just as we do with unused shvi’is produce.)

A SHMITTAH ROAST IN AMERICA

We can now explore the first question I mentioned:

1a: May one use shmittah wine to season a roast?

Although one improves the roast by adding the wine, the wine itself is ruined. Thus, some poskim prohibit using the wine in this way, whereas others permit it, since this is a normal use for wine (see commentaries to Yerushalmi, Terumos 11:1).

1b: What does our American housewife do with her shmittah wine-flavored roast?

If one uses shmittah food as an ingredient, one must treat everything that absorbs its taste according to the laws of kedushas shvi’is (see Mishnah Shvi’is 7:7). Therefore, one who used shmittah potatoes in cholent or shmittah onions or bay leaves in soup must treat the entire cholent or soup according to shvi’is rules. One may not actively waste this food, nor may one feed any of it to animals, until the food is spoiled to the point that people would not eat it.

Therefore, our housewife who added shmittah wine to her roast must now consider the entire roast, even the gravy and vegetables cooked with it, to have kedushas shvi’is. One serves the roast in the regular way. As mentioned above, the small scrapings left on an adult’s plate may be washed off; but the larger amounts left behind by children should not be disposed of in the garbage, nor should the leftovers in the pot or on the platter.

Although one may not dispose of the leftover kedushas shvi’is roast in the garbage, it is unclear whether one may remove these leftovers from the refrigerator in order to hasten their decay, even to place them in a shmittah bin (see Chazon Ish, Shvi’is 14:10). However, if one removed leftover roast to serve, one is not required to return the leftovers to the refrigerator. Instead, one may simply place the leftovers somewhere until they have spoiled. To avoid the malodor that this may cause, one may place them in a plastic bag until they decay and then dispose of them.

SEFICHIN

At this point, we should address the second question I mentioned:

“I noticed a sign in shul that the some fruits and vegetables in the local supermarket are from Israel and must be treated appropriately. Someone told me that the vegetables are prohibited, because they are sefichin. What does that mean?”

The Torah permits the use of any produce that grew during shmittah by itself, without anyone working the field. However, an unfortunate fact is that, even in the days of Chazal, one could find Jews who deceitfully ignored shmittah laws. One practice of unscrupulous farmers was to plant grain or vegetables, and then market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew by themselves, a prohibition called sefichin, or plants that sprouted. Sefichin are treated as non-kosher food and forbidden to eat, even requiring one to kasher the equipment if they were cooked!

Chazal made several exceptions to this rule, including that produce of a non-Jew’s field is not prohibited as sefichin.

Since Shmittah fruits and vegetables may be sold only to someone who will properly observe the laws, and, also, there is a prohibition of shipping this produce outside Eretz Yisroel, the growers of the Shmittah produce being sold in an American grocery presumably ignored the prohibition of Shmittah. There is also the possibility that they relied on heter mechirah, a topic that I dealt with extensively in a different article.

As a practical matter, few contemporary chareidi poskim permit heter mechirah, and, even among non-chareidi authorities, support for its use is waning. Thus, if the heter mechirah is considered a charade and not a valid sale, the grain and vegetables growing in a heter mechirah field are prohibited as sefichin.

WHY NOT FRUIT?

Chazal included in the prohibition of sefichin only crops that could be planted and yield a harvest in one year. They did not extend the prohibition of sefichin to tree fruits and other perennial crops, such as bananas and strawberries, because there was less incentive for a cheating farmer. Although trees definitely thrive when pruned and cared for, they will produce, even if left unattended for a year. Thus, the farmer has less incentive to tend his trees.

“GUARDED PRODUCE”

I mentioned above that a farmer must allow others free access to help themselves to any produce that grows on his trees and fields during shmittah. What is the halacha if a farmer treats this produce as his own and refuses access to it during shmittah?

The Rishonim dispute whether this will make the fruit forbidden. Some late poskim permit the fruit, because they rule that the forbidden working of an orchard or treating it as private property does not prohibit its fruit (see Shu”t Igros Moshe, Orach Chayim 1:186). Others rule that one should prohibit “guarded fruit.”

What about our carrot muffins? If we remember our original story, the company had unwittingly purchased heter mechirah carrots. The hechsher required the company to return all unopened boxes of carrots to the supplier and to find an alternative source. However, by the time the problem was discovered, muffin mix using these carrots had already been produced and distributed, bearing the hechsher’s kashrus symbol. The hechsher referred the shaylah to its posek, asking whether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error had occurred, advising the customer to ask his individual rav for halachic guidance. The posek asked permitted them to follow the latter procedure.

For someone living in Eretz Yisroel, observing shmittah properly involves assuming much halachic responsibility, education and often great commitment, since shmittah-permitted produce is often many times more expensive than its alternative. Those living in chutz la’aretz should be aware of the halachos of shvi’is and identify with this demonstration that the Ribbono Shel Olam created the world in seven days, and that the seventh year is holy.

 

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